NAVAL WAR COLLEGE.
INTERNATIONAL LAW SITUATIONS,
SOLUTIONS AND NOTES.
GOVERNMENT PRINTING OFFICE.
The discussion of International Law Situations was carried on by the
considerable body of officers composing the conference of 1904, with the
assistance of Mr. George Grafton Wilson, professor in Brown University.
It is always the intention to direct the discussions to those difficult and
urgent situations in which naval officers have been, or are likely to be,
involved, rather than to cases in which the law and precedent are well estab-
lished, and the president of the college invites suggestions as to such cases.
C. S. SPERRY,
Captain, U. S. Navy, President.
U. S. Naval War College,
Newport, R. I., March 3, 1905.
TABLE OF CONTENTS.
Situation I. — Merchant vessels adapted for conversion into auxil-
General attitude toward neutral commerce 9
Question of contraband 10
Grounds for commander's judgment 13
Special considerations ^ 16
Russian position, 1904 16
Situation II. — Rights of foreigner under martial law.
Nature of martial law 18
Application of Mr. B., the foreigner in State X 19
Position of the United States Department of State 21
Position of the War Department 23
Situation III (a), (b), (c), (d). — Insurgency.
Situation III (a) . — Asylum for insurgent troops on war vessel 26
Reception to bodies of men 27
Cases of asylum 27
Brazil, 1894 28
Korea, 1895 28
Development of policy in regard to asylum 29
Attitude toward insurgent troops 31
Asylum to officers of established government 32
General consideration of situation 33
Situation III (b). — Seizure of United States merchant vessel by in-
surgents : 34
6 TABLE OF CONTENTS.
Insurgents as pirates 35
Policy of United States 36
Attitude of Great Britain 37
Piracy according to international law 38
Application to situation 38
Situation III (c). — Transport service of United States merchant vessel
in time of insurrection 40
Nature of relations 41
Bluefields insurrection, 1894 42
Effect of charter 46
Opinion of Department of State 48
Situation III (d). — Return, during its continuance, of foreigners
implicated in insurrection , 51
Questions suggested by situation 51
(a) Asylum for insurrectionists on merchant vessels 53
The Barrundia case 53
President's statement of Government's position 55
Subsequent statements 55
Changes in Navy Regulations 58
(6) Intervention for the protection of those involved in insur-
rection who return upon a foreign merchant vessel 61
Attitude of Department of State 61
Situation IV. — Belligerent war vessel talcing supplies from supply
ship in neutral port.
Jurisdiction over public vessels 63
Marshall's opinion 64
Later opinions of the courts 67
Proclamation of 1870 68
Domestic law of the United States 70
British regulations 71
Neutrality proclamations 71
Rights of vessels in port 73
TABLE OF CONTENTS. 7
Situation V. — Neutral port as refuge to escape capture.
The twenty-four hour rule 79
Text writers' opinions 79
The twenty-four hour rule in proclamations 84
Conclusion in regard to twenty-four hour rule 87
Unmanned vessel in neutral port 87
Asylum to vessels pursued by enemy. 89
Opinion of Institute of International Law 91
Internment in Russo-Japanese war 93
Situation VI. — Use by belligerent of neutral telegraph.
(a) Eight to control telegraph 94
Control by United States 95
Hongkong-Manila cable in 1898 96
Carriage of military dispatches 98
Use of cables during Spanish-American war of 1898 99
Attitude of foreign governments 100
(b ) Censorship by the government 103
. Conclusion 104
Situation VII. — Newspaper correspondents and wireless telegraph.
(a) Treatment of correspondents 105
Russian declaration, 1904 105
Treatment of vessels ~ * 106
Correspondents as spies 107
Conclusion as to Russian declaration 108
Control of newspaper correspondents 108
(6) Regulations for the control of correspondents 112
Japanese regulations, 1904 112
Japanese naval regulations 114
Effect of Japanese rules 114
Russian regulations 114
General scope of necessary regulations 115
8 TABLE OF CONTENTS.
Situation VIII. — Rescue of shipwrecked belligerents by neutral war
vessel in foreign neutral Tiarbor.
(a) Claimed as prisoners of war 117
What constitutes a prisoner of war 117
Reasons why these are not prisoners of war 118
Public vessels in foreign ports 119
(6) Status of rescued crews 120
Captain Mahan's proposition at The Hague 120
Lawrence's opinion ". 122
H«:<?ue Conference provisions 123
Effect, of going on board public vessel 124
Chin o- Japanese war of 1894-95 125
Chemulpo affair, 1904 125
Eileen's opinion 127
Situation EX. — Territorial jurisdiction of entrance to Tiarbor 10
Maritime jurisdiction in general 129
Kent's extreme claim 129
Russian provision 132
French position in 1864 132
Questions raised by the United States 134
Questions raised by Professor Moore 136
Position of Secretary Bayard 136
Other opinions 137
Headland doctrine 138
Opinion of Institute of International Law, 1894 138
Other opinions on headland doctrine 138
Netherlands proclamation, 1904 140
INTERNATIONAL LAW SITUATIONS.
During a war between the United States and State X,
a cruiser of the United States overtakes and visits a neu-
tral merchant vessel bound, with no evidence of hostile
intent and with innocent cargo, for an unblockaded port
of State X. /
The merchant vessel seems well adapted for conversion
into an auxiliary cruiser. The officer of the United
States cruiser mentions this fact to the captain of the
merchant vessel. The captain points out that he is upon
a regular voyage to a port of State X.
What action, if any, should the commander of the
United States cruiser take?
From the statement of the situation there is no evi-
dence that the vessel itself is engaged in unneutral serv-
ice, is carrying contraband, or is about to attempt to run
a blockade. Owing to the nature of its construction the
vessel may easily be transformed into an enemy cruiser.
Such a vessel is liable to seizure if destined to be sold or
handed over to the enemy. The United States com-
mander is therefore justified in making such inquiries as
shall satisfy him that the vessel is bound upon an inno-
cent voyage. If the evidence seems to show that the ves-
sel is intended for sale to the enemy or for enemy service,
the commander should send the vessel in for adjudication
by the proper authorities.
NOTES ON SITUATION I.
General attitude toward neutral commerce. — It is evi-
dent from the statement of the conditions under which
the merchant vessel was sailing that the vessel could not
be seized on the ground of attempt to break a blockade,
10 CRUISER-LIKE MERCHANT VESSELS.
and also that the vessel is not guilty of carrying contra-
band or at the time engaged in unneutral service. If no
question is raised in regard to the construction of the
vessel itself, the commander of the United States cruiser
would without hesitation allow the neutral merchant
vessel to proceed to her destination.
The merchant vessel, however, seems well adapted for
conversion into an auxiliary vessel for war purposes.
The officer of the United States is, therefore, obliged to
consider whether on that account such a vessel should
be detained when upon a regular voyage to a port of
War upon the sea is becoming less and less an attempt
to destroy innocent commerce. To capture all neutral
vessels bound for enemy ports, provided they are so con-
structed that they might be converted into vessels which
could be used for hostile purposes, would be an unduly
severe blow to neutral commerce. The traditional policy
and the recent practice of the United States would 'seem
to discountenance such action. The general attitude of
the United States has been to interfere as little as possible
with the freedom of neutral trade. It would seem that
a liberal position should be taken in regard to seizure of
neutral vessels, even when such vessels may be converted
into naval vessels.
Question of contraband. — On the other hand the value
to the enemy of the vessels which are so constructed as
to be easily adapted to serve for hostile purposes is very
great. The classification of contraband of war, as set
forth in declarations and other statements during the
nineteenth century, does not cover the case of merchant
vessels of the class under consideration except by a
forced interpretation. The term " contraband of war"
includes those articles only which have a belligerent des-
tination and purpose. Such articles have been described
'*1. Articles that are primarily and ordinarily used for military purposes
in time of war, such as arms and munitions of war, military material, ves-
sels of war, or instruments made for the immediate manufacture of muni-
tions of war.
VESSELS AS CONTRABAND. 11
" 2. Articles that may be and are used for purposes of war or peace,
according to circumstances.
"Articles of the first class, destined for ports of the enemy or places
occupied by his forces, are always contraband of war.
"Articles of the second class, when actually and especially destined for
the military or naval forces of the enemy, are contraband of war."
This classification is in accord with the best opinion
and regular practice. It would not be possible to claim
that this merchant vessel, bound for a regular destina-
tion, falls under the designation of an article " primarily
and ordinarily used for military purposes in time of war,"
unless further proof could be found than is evidenced in
the situation as stated.
Vessels of the class under consideration are of compara-
tively recent development. They differ in status from
other vessels on account of their adaptability to war
purposes under certain circumstances. They also differ
from the auxiliary or volunteer navy in that they have
no direct relationship to the Government through con-
tract or other agreement.
Contraband of war has been viewed in recent years as
consisting almost solely of articles carried upon vessels.
Grotius, in 1625, gives three general classes:
" 1. Those things which have their sole use in war, such
"2. Those things which have no use in war, as articles
"3. Those things which have use both in war and out
of war, as money, provisions, ships, and those things
pertaining to ships.'' (De Jure Belli et Pacis. Bk. Ill,
ch. 1, 5.)
" Grotius regards articles of the first class as hostile, of
the second as not a matter of complaint, and of the third
as of ambiguous use (usus ancipitis), of which the treat-
ment is to be determined by their relation to the war.
" While the general principle may be clear, the applica-
tion of the principle is not simple. Those articles whose
sole use is in war are without question contraband. Ar-
ticles exclusively for peaceful use are not contraband.
Between these two classes are many articles in regard to
12 CRUISER-LIKE MERCHANT VESSELS.
which both practice and theory have varied most widely.
The theorists have endeavored to give the neutral the
largest possible liberty in commerce on the ground that
those who were not parties to the war should not bear
its burdens. This has been the opinion most approved
by the jurists of Continental Europe. Great Britain and
the United States have been inclined to extend the range
of articles which might on occasion be classed as contra-
band." (International Law, AVilson and Tucker, p. 303.)
Even the Supreme Court in the frequently cited case of
the Peterhojj, says, "The classification of goods as con-
traband has much perplexed text writers and jurists. A
strictly accurate and satisfactory classification is perhaps
impracticable." (5 Wallace, 28.) It is evident from
the study of the history of contraband that the classifica-
tion of contraband changes as the methods and instru-
ments of warfare vary. The main question is whether
the article is or is not intended for military use. The
term " contraband" is usually applied to cargo of ships
and merchandise transported upon ships. There is no
reason why the ship itself may not become itself merchan-
dise when an object of sale for warlike purposes. That
it may move under its own power makes no difference;
it may become an object of trade, and as such its charac-
ter may be determined by the use which it is to serve.
This merchant vessel is, as the officer of the United
States cruiser points out, adapted for conversion into an
auxiliary cruiser and is bound for an enemy port. The
vessel is therefore capable of a double use, and may easily
become a greater source of injury to the United States
than many objects of conditional contraband.
There is no question that the vessel will come under
the belligerent control on arrival at its destination.
This being the case there can be no objection raised to
the sale of the vessel itself or even to its seizure in an
extreme case. It may not be the intent of the owner
of the merchant vessel to sell it on arrival at its destina-
tion, but as Dana says of contraband, "'The truth is, the
intent of the owner is not the test. The right of the
belligerent to prevent certain things getting into the mili-
DETERMINATION OF VESSEl/s CHARACTER. 13
tary use of the enemy is the foundation of the law of
contraband, and its limits are, as in most other cases,
the practical result of the conflict between this bellig-
erent right on the one hand and the right of the neutral
to trade with the enemy on the other." Dana also says,
"I am inclined to the opinion that an actual intent to
deliver articles capable of military use directly into mili-
tary hands condemns the articles, at all events, as a vol-
untary intervention of their owner in the war; and that,
whether there be or be not such an intent, the belligerent
may capture certain articles because of their destination
to a place where they will come under the enemy's con-
trol and so may be used by the enemy in direct military
operations." Later, speaking of goods that are capable
of a double use, Dana says, " Although nothing be devel-
oped as to the owner's intent, yet if the condition of the
port of destination, or the character and state of the war,
make it satisfactorily appear that they will, in all prob-
ability, go directly into military use, or directly tend to
relieve an enemy from hostile pressure, the right of the
belligerent to intercept them may be exercised solely for
those reasons." (Dana's Wheaton's International Law,
n. 226, pp. 633, 634; also Kleen, La Neutrality I, sec. 92.)
Grounds for commander's judgment. — The intent of the
owner may not be known to the captain of the merchant
vessel, and in the case under consideration it is not such
as to determine the action of the United States officer.
His action must be determined by the nature of the thing
itself, not by intent of the owner or person in control,
for the intent is not capable of definition and determina-
tion. The intent of the owner or captain is a fact that,
while significant, is not the final test. The nature of
the vessel is, however, capable of determination. The
simple fact is that the vessel which is adapted for con-
version is bound for an enemy port. The vital question
is, will this vessel, if permitted to continue her voyage
without restraint, become an instrument of hostility
against the United States ? The nature of its construc-
tion makes this a possible or even a probable event,
unless there be some guaranty to the contrary. It is
14 CRUISER-LIKE MERCHANT VESSELS.
plainly the duty of the officer to consider what would be
the condition with respect to the successful continuance
of hostilities after this vessel has arrived within the
enemy port. There is no doubt that there would be
potentially an increase in the possible naval resources of
the enemy, for this vessel may be purchased or seized
even if necessary. This being the case, under present
conditions it is the duty of the United States officer to
guard against such increase. Such a vessel may be con-
traband even under the classification of contraband made
so early as in the days of Grotius. (De Jure Belli et
Pacis, Bk. Ill, ch. 1, 5.)
"The law as regards the sale of ships to belligerents is
in a state of transition, and, as was to be expected, the
most severe restrictions in this respect are placed upon
British shipbuilders and owners. Recently the state of
law was summed up as follows: 'An international usage
prohibiting the construction and outfit of vessels of war
is in course of growth, but it is not yet old enough, or
quite wide enough, to have become compulsory on those
nations which have not yet signified their voluntary
adherence to it.' The difficulty with regard to ships
not built primarily as men-of-war lies in the fact that
few fast steamers are altogether unfitted to receive an
armanent of some kind. The extremes of practice with
regard to Russia and Japan are to be found in the action
of Great Britain and Germany. This country, having
men-of-war under construction for Japan, has publicly
announced in her declaration of neutrality that no ships
will be allowed to be delivered until after the war. Ger-
many, on the other hand, has sold to Russia one of the
large and fast mail steamers of the Hamburg-American
line, a ship fitted by her construction to be used as an
'auxiliary' cruiser, as well as other ships of less impor-
tance." (L. G. Carr Laughton, "Belligerents and neu-
trals," The United States Service Magazine, June, 1904,
Such vessels are of a comparatively late form of con-
struction. Consequently, their status has not been set-
tled by many precedents.
PROOF OF INNOCENT INTENT. 15
From the nature of the construction the indications
are that the vessel under consideration is fitted with a
view to hostile use in case that it is advisable to so use
the vessel. There is, therefore, evidence sufficient to
warrant the commander of the cruiser in demanding
further proof than the simple statement of the captain
of the merchant vessel that he is upon his regular voy-
age. The burden of proof of innocent intent may prop-
erly be placed upon the merchant captain and should be
thus placed in cases of this kind. This is not an undue
hardship upon neutrals, as the vessel is of a character
easily approximating contraband.
"As a general rule a neutral has a right to carry on such
trade as he may choose with a belligerent. But the
usages of war imply the assumption that the exercise
of this right is subjected to the condition that the trade
of the neutral shall not be such as to help the belligerent
in prosecuting his own operations or in escaping from the
effects of those of his enemy. When neutral commerce
produces this result the belligerent who suffers from the
trade is allowed to put it under such restraint as may be
necessary to secure his freedom of action." (Hall, Inter-
national Law, 5th ed., p. 505.)
The commander in protecting his county, if he has
any ground for belief that sale might be made, could
demand further evidence or even a guaranty that the
vessel is not proceeding to the port of X for sale, or
even might allow the vessel to proceed only on condition
that it would not be sold to the enemy. This would not
be an interruption of the peaceful commerce of the
enemy, but only a proper measure to guard against the
increase of the fighting power of the enemy. Should
the captain of the merchant vessel be unwilling to give
such guaranty as he is competent to give that the vessel
wil] not be sold to the enemy at port X, this may be a
ground for sending the vessel in for adjudication by
a prize court.
It is certain that such vessels as are under hostile gov-
ernment contract or subsidy can not be allowed the same
freedom as is allowed to ordinary commercial vessels.
16 CKUISER-LIKE MERCHANT VESSELS.
It is also certain that there is a point at which the ordi-
nary commercial vessel will merge into the vessel easily
adapted for conversion into an auxiliary cruiser.
Some special considerations. — The commander of the
visiting war vessel must decide on each case upon the
evidence from all points of view, and in case of doubt it
is safer to allow the courts to decide. He should take
into consideration not only the construction of the ves-
sel, but also such matters as the need of State X for such
vessels, the practice of the State in regard to purchase
and seizure of such vessels, the need for such vessels for
warlike purposes in the port to which the vessel in ques-
tion is sailing, the number of times this vessel has made
this voyage to the port of X since the outbreak of hos-
tilities, the responsibility and sincerity of the owners of
the vessel, and the like.
In many instances it is wiser to incur the risk that the
United States may have to pay indemnity for the delay
of such a vessel rather than to incur the risk which would
come from the addition of such a vessel to the navy of
It is certain that such vessels will become a subject for
consideration and that they can not be regarded as other
than contraband in some instances. When so regarded,
an officer would be justified by international law in seiz-
ing the vessel as itself contraband. Whether it will be
the policy of the United States to place such vessel in
its list of contraband, and what the decisions of courts
will be in regard to goods, etc., upon such vessels, is not
Russian declaration, 190 4. — The position of Russia
makes such vessels contraband, as shown in the " Rules
which the Imperial Government will apply during the
war with Japan," 1904.
VI. Sont consideres comme contrebande de guerre lesobjets suivants: . . .
(6) Les biitiments se rendant dans un port ennemi meme sous pavilion
de commerce neutre, si d'apres leur construction, leur amenagement inte-
rieur et d'autres indices, il y a evidence qu'ils sont construits dans un but
de guerre et se dirigent vers un port ennemi pour y etre vendus ou remis
RUSSIAN DECLARATION, 1904. 17
This clause has been translated in the Official Notice
of the British Board of Trade, March 18, 1904, as follows:
The following articles are deemed to be contraband of war:
(6) Vessels bound for an enemy's port, even if under a neutral commercial
flag, if it is apparent from their construction, interior fittings, and other
indications that they have been built for warlike purposes and are proceed-
ing to an enemy's port in order to be sold or handed over to the enemy.
From the above it is evident that Russia would regard
a vessel sailing, as is the vessel under consideration in
the Situation, for its regular post of call, as free unless
there is evidence that she is " proceeding to an enemy's
port in order to be handed, over to the enemy."
Doctor Lushington earlier took practically the same
position in stating that British commanders are directed
to detain as contraband a vessel "If she is fitted for
purposes of war as well as commerce, and it appears that
she is destined for the enemy's government to be used
as a vessel of war." (Naval Prize Law, par. 207.)
Conclusion. — If this vessel is destined to be sold to the
enemy for warlike purposes, it is plainly the duty of the
commander to seize the vessel. There is evidence that
it may easily be converted to such purpose. The com-
mander should therefore take such measures as will give
to him reasonable assurance that the vessel, though easily
adaptable to warlike uses, will not come into the hands
of the enemy for such uses.
War exists between States X and Y. The United States
is neutral. A port of State X is placed under martial law.
Mr. B, a citizen of the United States, residing and doing
business at the port, is seized, imprisoned, and about to
be deported without trial. He appeals to the-commander
of a United States war vessel who chances to be the only
representative of the United .States in the region.
What action, if any, is the commander justified in
The commander of the United States war vessel would
be justified in requesting that Mr. B be not arbitrarily
deported without trial, that he have a prompt and fair
trial by a military court or commission, and if the military
exigencies make a trial impracticable, he would be justi-
fied in requesting that Mr. B be placed in his custody.
NOTES ON SITUATION II.
Nature of martial law. — Silent leges inter arma is a com-
mon dictum of municipal law. This has been repeatedly
recognized by the Government of the United States.
The ordinary courts refuse to interfere with the course
of military judgment as enforced by courts-martial. As
affirmed by the Supreme Court in the case of Dynes v.
Hoover (20 How., 65), "With the sentences of courts-
martial which have been convened regularly, and have
proceeded legally, and by which punishments are directed
which are not forbidden by law, or which are according
to the laws and customs of the sea, civil courts have noth-
ing to do, nor are they in any way alterable by them."
As Halleck says:
It is necessary to distinguish between military and martial law: for the two
are very different. In Great Britain the former has only to do with the land
forces mentioned in section 2 of the Mutiny Act — now the Army Act, 1881 —
and the Articles of War. In the United States the Rules and Articles of
SCOPE OF MARTIAL LAW. 19
War constitute the Military law. This law exists equally in peace and in war,
and is as fixed and definite in its provisions as the Admiralty, Ecclesiastical,
or any other branch of law, and is equally with them a part of the general
law of the land. But Martial law originates either in the prerogative of the
Crown, as in Great Britain, or from the exigency of the occasion, as in other
States; it is one of the rights of sovereignty, and is as essential to the
existence of a State as is the right to declare or carry on war. It is a power
inherent in every Government, and must be regarded and recognized by all
other Governments. It is one of the incidents of war, invasion, or rebellion;
and arises when there is no time for the slow and cumbrous proceedings of
the Civil law. Like the power to take human life in battle, it results directly
and immediately from the fact that war in name or in substance exists.
(Halleck's International Law, Baker's ed., vol. 1, p. 544.)
Application to Mr. B. — Mr. B, in the case under consid-
eration, is a citizen of the United States residing and doing
business in the port of State X. This port is under martial
law. He is not exempt by virtue of his United States
citizenship from any of the legitimate consequences of
war. The Instructions for the Government of Armies of
the United States in the Field provide (Section 1, 7) that
"martial law extends to property, and to persons,
whether they are subjects of the enemy or aliens to that
Government." These Instructions, which have been
generally approved as liberal by other States of the world,
also provide (Section 1, 5) that " martial law should be
less stringent in places and countries fully occupied and
fairly conquered. Much greater severity may be exer-
cised in places or regions where actual hostilities exist,
or are expected and must be prepared for. Its most com-
plete sway is allowed, even in the commander's own
country, when face to face with the enemy, because of the
absolute necessities of the case, and of the paramount
duty to defend the country against invasion."
These rules of war indicate the propriety of the suspen-
sion of the ordinary legal processes during the actual
hostilities. This position has also been sustained by the
Supreme Court of the United States.
" If in foreign invasion or civil war, the courts are actu-
ally closed, and it is impossible to administer criminal
justice according to law, then, on the theater of active
military operations, where war really prevails, there is
necessity to furnish a substitute for the civil authority,
20 FOREIGNER UNDER MARTIAL LAW.
thus overthrown, to preserve the safety of the a. my and
of society; and as no power is left but the military, it is
allowed to govern by martial rule until the laws can have
their free course. As necessity creates the rule, so it
limits its duration; for, if this Government is continued
after the courts are reinstated, it is a gross usurpation of
power. Martial rule can never exist where the courts are
open, and in the proper and unobstructed exercise of their
jurisdiction. It is also confined to the locality of actual
war." (Ex Parti MiUigan 4, Wallace 2. Mr. Justice
Davis delivered the opinion.)
The fact that Mr. B, the citizen of the United States,
was doing business in State X gave to him a more com-
plete connection and interest in the affairs and destiny
of State X than would the simple fact of temporary
Risley (Law of War, p. 93) says:
Where a person of whatever nationality, or his property, or a tract of
territory, becomes connected with the enemy State in such a manner as to
be a source, directly or indirectly, of strength and assistance to that State,
such person, property, or territory must be regarded as being subject to or
belonging to the enemy, and acquires an enemy character.
Enemy character as attaching to persons and their property may arise
from permanent allegiance to and residence within the territory of the
adverse belligerent, in which case it is complete; or it may be of a partial
and temporary nature, limited to certain intents and purposes, arising from
such particular circumstances as having possessions in enemy territory, or
maintaining a house of commerce there, from personal residence there,
or from particular modes of traffic, such as sailing under the enemy's flag
By this manner a belligerent's own subject or a neutral subject may
acquire an enemy character depending upon a kind of implied temporary
allegiance to the enemy State: but as soon as he chooses to terminate his
hostile allegiance he terminates his hostile character.
As well stated by Davis (Elements of International
Law, p. 333) —
Martial lav, or to speak more correctly military rule, or the law of hostile
occupation, is a term applied to the government of an occupied territory by
the commanding general of the invading force. Martial law also prevails
in the immediate theater of operations of an army in the field. The
reason in both cases is the same. The ordinary agencies of government,
including the machinery provided for the prevention and punishment of
crime, are suspended by the fact of war. This suspension takes place at a
POSITION OF DEPARTMENT OF STATE. 21
time when society is violently disturbed, when the usual restraints of law
are at a minimum of efficiency, and when the need of such restraint is the
greatest possible. This state of affairs is the direct result of the invasion, or
occupation, of the disturbed territory by an enemy. The only organized
power capable of restoring and maintaining order is that of the invading
force, which is vested in its commanding general.
Upon him, therefore, international law places the responsibility of pre-
serving order, punishing crime, and protecting life and property within the
limits of his command. His power in the premises is equal to his responsi-
bility. In cases of extreme urgency, such as arise after a great battle, or the
capture of a besieged place or a defended town, he may suspend all law and
may punish crimes summarily, or by tribunals of his own constitution. . . .
He appears in the occupied territory as an agent of his government, charged
with the conduct of certain military operations. His first responsibility is
to his own government for the successful conduct of the military operations
with the direction of which he is charged. In carrying on those operations
his government and himself are bound by the laws of war. The usages of
war authorize him to employ certain forcible measures toward his enemy.
They forbid indiscriminate violence, the use of excessive force, or the use of
any force which does not contribute directly to the end for which the war is
undertaken. His exercise of authority in the occupied territory must,
therefore, be the least possible, consistent with these ends.
Position of Department of State.- — During the revolution
in Hawaii, in 1895, the following telegram was sent by
Mr. Gresham, Secretary of State, to Mr. Willis:
Department of State,
Washington, February 25, 1895.
With reference to your telegram of the 17th instant, touching the impris-
onment or condemnation of numerous persons in connection with the recent
disturbance in Hawaii, I observe your statement that 13 American citizens
are still in prison without charges and without trial. This Government has
no disposition to be exacting with that of Hawaii, especially under present
circumstances, but it owes a duty to its citizens to see to it that they are not
wantonly subjected to arbitrary treatment. Though martial law has been
proclaimed, it does not follow that aliens innocent of participation in the
acts which gave rise to its proclamation may be arrested and indefinitely
imprisoned without charges and without trial. The existence of martial
law, while it may imply the suspension of the methods and guaranties by
which justice is ordinarily secured, does not imply a suspension of justice
itself. You are instructed to insist to the Hawaiian Government that the
American citizens still imprisoned without charge and without trial shall be
promptly tried or promptly released.
The letter of Mr. Gresham to Mr. Willis of the same date
with the above telegram, also defines the position of the
United States in a special instance. It may be stated in
22 FOREIGNER UNDER MARTIAL LAW.
advance that the Mr. J. Cranstoun mentioned below was
subsequently shown not to be an American citizen. The
letter is as follows :
No. 66.] Department of State,
Washington, February 25, 1895.
Sir: I have to acknowledge the receipt of your No. 86 of the 8th instant,
in relation to affairs in Hawaii, and particularly in relation to the forcible
deportation on the 2d instant of three men, one of whom, Mr. J. Cranstoun,
claims to be a citizen of the United States.
I inclose herewith copies of certain depositions made by Mr. Cranstoun
on the 11th and 12th instant, before Mr. Peterson, the commercial agent of
the United States at Vancouver. These depositions leave the question of
Mr. Cranstoun's nationality in doubt, and Mr. Peterson has been instructed
to obtain further statements from him on that subject.
Under these circumstances, the Department does not now instruct you
to make any representations to the Hawaiian Government in regard to Mr.
Cranstoun, but it is proper to express to you, for your own guidance in
similar cases, should they arise, the views here entertained in regard to the
course of action taken in that case.
It appears that after having been kept in jail for nearly a month, without
any charges having been made against him, he was taken under a heavy
guard to a steamer and would, in spite of his request to you, have been
deported without having had an opportunity then to do so had it not been
for the accidental but timely interposition of the British commissioner.
You state that when you asked the attorney-general for an explanation
of the proceeding he replied that the cabinet had determined to deport the
men "in the exercise of the arbitrary power conferred by martial law."
As this was the only explanation he gave, it is presumed it was all he had
to offer, and he gave it without suggestion of any question as to Mr. Crans-
If the position thus assumed be sound, the very proclamation of martial
law in Hawaii renders all foreigners there residing, including Americans,
liable to arrest and deportation without cause and without any reason other
than the fact that the executive power wills it. They may be taken from
their homes and their business; they may be deprived of their liberty and
banished; they may be denied the ordinary as well as the special treaty
rights of residence without offense or misconduct on their part, simply in
the exercise of "arbitrary power."
To state such a proposition is, in the opinion of the President, to refute it.
"Truly viewed," says an eminent author, "martial law can only change the
administration of the laws, give them a rapid force, and make their penal-
ties certain and effectual — not abrogate what was the justice of the com-
munity before The civil courts are in part. or fully suspended, but, in
reason, the new summary tribunals should govern themselves in their pro-
ceedings, as far as circumstances admit, by established principles of justice
the same which had been recognized in the courts." (Bishop's Criminal
Law, sec. 4.5.)
POSITION OF WAR DEPARTMENT. 23
In view of what has been stated, your course in protesting against the
position assumed by the attorney-general of Hawaii is approved.
I am, etc.,
W . Q. Gresham.
(U. S. Foreign Relations, 1895, p. 842.)
Position of the War Department. — A late opinion ren-
dered to the War Department of the United States by
Hon. Charles E. Magoon, law officer, Bureau of Insular
Affairs (The Law of Civil Government Under Military
Occupation, p. 12), says:
It will be seen that a military government takes the place of a suspended
or destroyed sovereignty, while martial law or, more properly, martial rule,
takes the place of certain governmental agencies which for the time being
are unable to cope with existing conditions in a locality which remains sub-
ject to the sovereignty.
The occasion of military government is the expulsion of the sovereignty
theretofore existing, which is usually accomplished by a successful military
The occasion of martial rule is simply public exigency, which may arise
in time of war or peace.
A military government, since it takes the place of a deposed sovereignty
of necessity continues until a permanent sovereignty is again established
in the territor}\ Martial rule ceases when the district is sufficiently tranquil
to permit the ordinary agencies of government to cope with existing con-
The power of such government, in time of war, is a large and extraordi-
nary one, being subject only to such conditions and, restrictions as the laws
of war impose upon it.
As was said by the United States Supreme Court, such governing author-
ity "may do anything necessary to strengthen itself and weaken the enemy.
There is no limit to the powers that may be exerted in such cases save those
which are found in the laws and usages of war. ... In such cases
the laws of war take the place of the Constitution and laws of the United
States as applied in the time of peace." (New Orleans v. Steamship Co.,
20 Wall., 394.)
Commenting on this view of the law, the Texas supreme court say: "This
language, strong as it may seem, asserts a rule of international law recog-
nized as applicable during a state of war." (Daniel v. Hutcheson, 86
Martial rule, as exercised in any country by the commander of an invad-
ing army, is an element of jus belli. It is incidental to a state of war and
appertains to the law of nations. The commander of the occupying army
rules the territory within his military jurisdiction as necessity demands and
prudence dictates, restrained by international law and obligations, the
usages and laws of war, and the orders of his superior officers of the govern-
ment he serves and represents.
24 FOREIGNER UNDER MARTIAL LAW.
Conclusion. — It is evident that the commander in a
region under martial law has a right to exercise such a
measure of control of all inhabitants of the region,
whether natives or foreigners, as military operations may
require, and only that degree of force should be used
which is necessary to accomplish the end of the war.
Tins end can not be brought about more speedily by
inflicting undue hardships on the innocent population-
indeed, such action often prolongs hostilities.
In the case of Mr. B, the citizen of the United States,
at a port of State X, which port is under martial law, it
is proper, according to the position of the United States
Government, that the ordinary processes of law should
be hastened, because the existence of such a state of jur-
isdiction implies that ordinary court processes are not
sufficiently effective to meet immediate exigencies.
Even though Mr. B is an alien in State X, the fact that
he has been residing and doing business at the port ren-
ders him liable to the consequences of his sojourn in the
time of war, provided the commander declaring martial
law does not exceed his authority in the action toward
The seizure of Mr. B is an act which is within the field
of proper authority of the commander enforcing martial
law. The temporary imprisonment may be and often is
necessary in the time of martial law. Imprisonment
without trial, however, may be only for the period of
absolute military necessity. Martial law does not imply
the absence of justice in the treatment of the population
which may be under it for the time being , but rather the
acceleration of the course of justice. As deportation and
imprisonment for a considerable time without trial would
imply the absence or denial of proper procedure under
generally recognized principles of international law, the
commander of the United States war vessel would be
justified in hearing the appeal of the citizen of the United
States, Mr. B. He would be further justified in asking
for Mr. B a fair trial by a military court or commission.
If the military exigencies make such a trial impracti-
cable, the commander of the United States war vessel
MARTIAL LAW ACCELERATES JUSTICE. 25
would be justified in requesting that Mr. B be placed in
his custody, in which case he would be under obligation
to see that Mr. B conducts himself in a proper manner
with regard to the authorities controlling the port.
Such action would accord with the general principles
of justice and would be according to the instructions of
the Department of State in the cases in Hawaii in 1895,
when the Secretary said —
You are instructed to insist to the Hawaiian Government that the Amer-
ican citizens still imprisoned without charges and without trial shall be
promptly tried or promptly released.
The fundamental fact in all cases where martial law is
declared is that it does not establish arbitrary authority
without regard to law in the commander of the region, but
accelerates the course of justice so far as the military
necessities at the time demand.
There is an insurrection in State X, during which the
following situations arise:
(a) Certain insurgent troops are pursued by the regular
troops of State X. The insurgent troops seek and are
f ranted asylum in the legation of the United States,
he minister of the United States becomes alarmed and
asks the commander of a United States war vessel in the
harbor to receive the insurgents on board his vessel in
order to prevent bloodshed, which is imminent.
What should the commander do, and why?
(b) The insurgents seize the Robin, a United States
merchant vessel in the harbor, and, promising to recom-
pense the owners, sail away with the vessel. The owners
of the Robin request the commander of the United States
war vessel to recover the Robin in case he meets the ves-
sel. The commander meets the Robin on the high sea.
What, if anything, should the commander do?
(c) State X charters a United States merchant vessel
to transport troops to the seat of the insurrection. When
the vessel is about to land these troops it is captured by
the insurgents. The captain of the United States mer-
chant vessel appeals for assistance to the commander of
a United States war vessel near by.
What action, if any, should he take ?
Would he act otherwise if the troops of State X had
been landed before the capture of the vessel ?
(d) Mr. Smith, a citizen of the United States, is impli-
cated in this insurrection in State X and is sent out of the
country. Mr. Smith, as a passenger upon a vessel of
State Y, subsequently enters a port of State X. He is
thereupon arrested by the authorities of State X. He
then appeals to the commander of a United States war
vessel to obtain his release, stating that the action of the
authorities of State X was illegal and unjustifiable.
What action, if any, should the commander take?
Situation III, (a).
There is an insurrection in State X, during which the
following situation arises:
(a) Certain insurgent troops are pursued by the reg-
ular troops of State X. The insurgent troops seek and
NAVAL REGULATIONS AND ASYLUM. 27
are granted asylum in the legation of the United States.
The minister of the United States becomes alarmed and
asks the commander of a United States war vessel in
the harbor to receive the insurgents on board his vessel
to prevent bloodshed which is imminent.
What should the commander do, and why 4
The commander should reply to the minister that he
has no authority to promise to receive or directly or
indirectly to .invite any refugees on board his vessel,
and that he can only judge in regard to the propriety of
the reception of any such person or persons when they
appear at the vessel requesting asylum.
NOTES ON SITUATION III, (a).
Reception to bodies of men. — This situation again
raises the question of interpretation of article 308 of the
United States Naval Regulations of 1900, which was
somewhat fully discussed under Situation II in 1902.
This regulation is as follows:
The right of asylum for political refugees has no foundation in interna-
tional law. In countries, however, where frequent insurrections occur,
and constant instability of government exists, usage sanctions the granting
of asylum; but even in the waters of such countries officers should refuse
all applications for asylum, except when required by the interests of
humanity in extreme or exceptional cases, such as the pursuit of a refugee
by a mob. Officers must not directly or indirectly invite refugees to
In Situation II, of 1902, the question of the propriety
of a promise of asylum in advance of the emergency was
discussed and the propriety of such promise was denied.
The case now under consideration finds certain insur-
gent troops already granted refuge in the legation of
the United States.
Cases of asylum. — The minister of the United States
may claim some weight of precedent for his request in
the case of the reception of various members of the
defeated faction after the battle of Placillas, in Chile,
in 1891. The telegram from the United States legation
on September 7, 1891, states that a number of the sup-
porters of the Government of Chile, "in order to save
28 ASYLUM TO INSURGENT TROOPS.
their lives, which certainly would have been sacrificed,
took refuge on board the German and United States
ships of war." (U. S. Foreign Relations, 1891, p. 161.)
Later refugees from the legation of the United States,
and from the Spanish legation, were received on board a
United States war ship, and were accompanied to the
ship by ministers of the United States, Spain, and Italy.
Brazil, 189 %. — In 1894, on the suppression of* the
Brazilian insurrection, the leaders and some of the
other insurgents were received on board a Portuguese
man-of-war. Mr. Gresham, at that time Secretary of
State, sent the following dispatch to Mr. Bayard:
No. 342.] Department of State,
Washington, April 6, 1894-
Sir: You are doubtless aware that the night before the final collapse
of the insurgent movement in the bay of Rio de Janeiro, da Gama, the
insurgent leader, and some of his subordinate officials, were received on
board a Portuguese man-of-war in the harbor. About two weeks ago the
British ambassador here informed me that the Brazilian Government had
demanded of Portugal the surrender of these men, and that the latter
Government had offered to land them somewhere beyond the jurisdiction
of Brazil, and there detain them until the fate of the insurrection should
be known, when their right of asylum under the circumstances could be
determined. Sir Julian was instructed, he said, by his Government to ask
the United States to join Great Britain in a friendly suggestion to the Gov-
ernment of Brazil that it accept this offer of Portugal. I submitted the
matter to the President and, after full consideration, he instructed me to
inform Sir Julian that the United States did not feel inclined to join in
the suggestion. A day or two later a substantially similar request was
received from the Government of Italy, through Mr. Thompson, our
minister at Rio, and answered in the same way, and within the last week a
direct request to the same effect from the Portuguese Government, through
its minister here, has been declined.
I am, etc., W. Q. Gresham.
(U. S. Foreign Relations, 1894, p. 278.)
Korea, 1895. — In Korea, in 1895, certain refugees
sought the legation of the United States, and were re-
ceived within it. At that time the United States repre-
sentative at Seoul sent the following telegram to the
Department of State:
Seoul, December 1, 1895.
Three days ago loyalists made a fruitless attempt to capture royal
palace, in consequence of which usurpers are very bold, arresting and
killing loyalists. I have 8 refugees. See my dispatch No. 159. Xo
NO ASYLUM INVOLVING INTERFERENCE. 29
charge made against them, but if caught they will be tortured and killed
by the King's father. A demand may soon be made for them for some
reason or other. It is desirable for them to leave. Yorktown will shortly
leave for Shanghai. Will you authorize commander in chief to grant
Mr. Sill subsequently explained that his intention
was to prevent injury to the refugees. He says in a
dispatch of January 20, 1896:
I had at no time supposed that the refugees could be sheltered by me
" against officers of the de facto Government charged with apprehending
them as violators of the laws of their country." On the contrary, they
had been informed by me that I must at any time give them up upon
proper demand from the Korean Government; hence my desire to get
them out of the way before any demand for them should be served on me.
To the telegram mentioned above, Mr. Olney made a
very positive reply, as follows :
Department of State,
Washington, December 2, 1895.
Sill, Minister, Seoul:
Refugees can not be sheltered by you against officers of de facto govern-
ment charged with apprehending them as violators of the laws of their
country. Use of Yorktown in manner suggested is wholly inadmissible.
The Department sees with disfavor your disposition to forget that you
are not to interfere with local concerns and politics of Korea, but are to
limit yourself strictly to the care of American interests.
(U. S. Foreign Relations, 1895, pp. 974, 977.)
Development o] policy in regard to asylum. —The general
attitude toward asylum in legations and upon vessels
of war has in recent years become less and less favorable.
In some of the early diplomatic correspondence of the
United States asylum was regarded with favor. In
1844 Mr. Calhoun wrote to the representative in Brazil
that, "The right of asylum in revolutionary times and
in revolutionary countries should be indulgently con-
strued." During the latter half of the nineteenth
century the policy of the United States has been to
discourage the granting of asylum. In countries outside
of those in the Western Hemisphere the granting of
asylum has been reduced to the narrowest limits and
almost prohibited. In Central and South American
States, and in the West Indies, there have been, however,
frequent instances of the exercise of this means of protec-
30 ASYLUM TO INSURGENT TROOPS.
tion to refugees. Even in these countries the United
States has tried to discourage the practice in late years.
This is shown in a dispatch of Mr. Seward to Mr. Hollister,
May 28, 1S6S, in which Mr. Seward says:
The revolutionary condition seemed to have become chronic in many
of the South American nations after they had achieved their independence,
and the United States, as well as the European nations, recognized and
maintained the right of asylum in their intercourse with those republics.
We have, however, constantly employed our- influence for several years
to meliorate and improve the political situation in these republics, with
an earnest desire to relinquish the right of asylum there.
Secretary Fish, in a dispatch to Mr. Bassett June 4,
1875, speaking of persons who have sought asylum in the
United States legation in Port au Prince in the time of
civil disturbances, says:
It is regretted that you deemed yourself justified by an impulse of hu-
manity to grant such an asylum. You have repeatedly been instructed
that such a practice has no basis in public law, and so far as this Govern-
ment is concerned, is believed to be contrary to all sound policy. The
course of the diplomatic representatives of other countries in receiving
political refugees upon such occasions is not deemed sufficient to warrant
this Government in sanctioning a similar step on the part of the repre-
sentatives of the United States.
Later, in 1883, Mr. Frelinghuysen says of this same
The views of this Government as to the right of asylum have long been
well known. You will find them in the correspondence of this Department
with your predecessor, Mr. Bassett. * * * While indisposed from
obvious motives of common humanity to direct its agents to deny temporary
shelter to any unfortunates threatened with mob violence, it is proper
to instruct them that it will not countenance them in any attempt to
knowingly harbor offenders against the laws from the pursuit of the legiti-
mate agents of justice.
(For many references, see 1 Wharton's Digest, sec. 104.)
Mr. Olney, in 1895, says that it is "the uniform rule
of this Government to discountenance asylum in every
form, and to enjoin upon its agents the exercise of the
utmost care to avoid any imputation of abuse in granting
such shelter. It may be tolerated as an act of humanity
when the hospitality afforded does not go beyond
sheltering the individual from lawlessness. It may
not be tolerated should it be sought to remove a subject
ASYLUM GENERALLY DISCOURAGED. 31
beyond the reach of the law to the disparagement of the
sovereign authority of the State." (Foreign Relations,
1895, p. 246.)
Mr. Hay, in 1899, says, "It is evident that a general
rule, in the abstract, can not be laid down for the inflex-
ible guidance of the diplomatic representatives of this
Government in according shelter to those requesting it.
But certain limitations to such grant are recognized.
It should not, in any case, take the form of a direct or
indirect intervention in the internecine conflicts of a
foreign country, with a view to the assistance of any
of the contending factions, whether acting as insurgents
or as representing the titular government." (Foreign
Relations, 1899, p. 258.)
From the instances cited above, and from many other
instances where the opinion of the Government of the
United States has been expressed, it is evident that the
attitude of the United States is to discourage the grant
of asylum to the utmost, and to limit its grant to cases
where mob violence is threatened, or where the ordinary
course of government is interrupted. This same ten-
dency of restriction is evident in other countries as well
as in the United States.
Attitude toward insurgent troops. — In the case under
consideration the insurgent troops have sought the
shelter of the legation to escape the consequences of war,
which as troops they had waged upon the regular govern-
ment. In sheltering these troops from the regular troops
the minister of the United States has in a measure taken
the part of the insurgents against the established govern-
ment. Such action has repeatedly been disavowed by
the United States Government. If these insurgent troops
have engaged in hostilities against the established
government they are liable to the consequences of their
action, and it is not the function of representatives of
the United States to protect them from such conse-
quences. As Mr. Fish said, in 1875:
Among other objections to granting such asylum it may be remarked
that that act obviously tends so far to incite conspiracies against govern-
ments, that if persons charged with offenses can be sure of being screened
32 ASYLUM TO INSURGENT TROOPS.
in a foreign legation from arrest they will be much more apt to attempt
the overthrow of authority than if such a place of refuge were not open
The printed Instructions to the Diplomatic Officers of
the United States, issued by the Department of State
declare that —
The privilege of immunity from local jurisdiction does not embrace the
right of asylum for persons outside of a representative's diplomatic or
In some countries, where frequent insurrections occur and consequent
instability of government exists, the practice of extraterritorial asylum has
become so firmly etsablished that it is often invoked by unsuccessful insur-
gents and is practically recognizd by the local government, to the extent
even of respecting a consulate in which such fugitives may take refuge.
This Government does not sanction the usage and enjoins upon its repre-
sentatives in such countries the avoidance of all pretexts for its exercise.
While indisposed to direct its representatives to deny temporary shelter to
any person who may be threatened by mob violence, it deems it proper to
instruct them that it will not countenance them in any attempt knowingly
to harbor offenders against the laws from the pursuit of the legitimate
agents of justice.
Asylum to officers of established government. — In 1894
certain refugees were received upon the Bennington while
that vessel of the United States Navy was at La Liber-
tad in Salvador. These refugees were officers of the
established government which the United States had
recognized and when received were fleeing from the rev-
olutionists. Of this event President Cleveland, in his
message of December 3, 1894, says:
The Government of Salvador having been overthrown by an abrupt
popular outbreak, certain of its military and civil officers, while hotly pur-
sued by infuriated insurgents, sought refuge on board the United States war-
ship Bennington, then lying in a Salvadorean port. Although the practice
of asylum is not favored by this Government, yet in view of the imminent
peril which threatened the fugitives, and solely from considerations of
humanity, they were afforded shelter by our naval commander, and when
afterwards demanded under our treaty of extradition with Salvador for
trial on charges of murder, arson, and robbery, I directed that such of them
a- had not voluntarily left the ship be conveyed to one of our nearest porta
where a hearing could be had before a judicial officer in compliance with the
terms of the treaty.
From this passage of the President's message, and from
the correspondence bearing upon the event, it is evident
NO PROMISE OF ASYLUM. 33
that the affair was regarded as one of granting temporary-
shelter to those who were pursued by an irresponsible
body of troops. In other cases the United States has
made a distinction between the granting of temporary-
shelter to those in imminent danger and the granting
of asylum as a deliberate act. While the first is some-
times allowable, the latter has been uniformly dis-
countenanced. It has also been admitted in practice
that somewhat more of favor may properly be extended
to officials of the established government than to parties
in opposition to it.
General consideration of the Situation. — In the case as
presented for solution, the troops opposing the established
government have received asylum in the United States
legation, and from fear lest there may be bloodshed the
minister of the United States requests the United States
commander to receive the refugees on board his vessel.
Presuming that there would be no difficulty in bring-
ing the refugees to the vessel, which would doubtless
ne contrary to the fact, should he agree to receive the
refugees? Of course, the commander would have no
right to take any steps to bring the insurgent troops on
board his ship or to secure their safety within the juris-
diction of State X while they are passing from the lega-
tion to the vessel, even if he should grant the requested
asylum. The commander could, however, land forces
for the protection of American interests. If the legation
of the United States is in danger, the landing of forces for
its protection is legitimate and such action is not uncom-
mon. No violation of the territory of State X by landing
a guard to escort the troops of the insurgent party could
be held to be a protection of United States interests
without the special orders of the Government.
The commander would be justified in affording pro-
tection to the legation in case of danger to it or offense
against its inviolability.
The commander would not assume to judge of the pro-
priety or impropriety of the action of the United States
minister. Nor should he share the responsibility of the
minister. The fact that the minister has received these
34 ASYLUM TO INSURGENT TROOPS.
refugees does not justify the commander in receiving
them even upon the minister's request. The position of
the Government has been set forth by Secretary Hay, in
1899, when speaking of shelter, "certain limitations to
such grant are recognized. It should not, in any case,
take the form of a direct or indirect intervention in the
internecine conflicts of a foreign country, with a view to
the assistance of any of the contending factions, whether
acting as insurgents or as representing the titular
government. ' '
Conclusion. — Considering the attitude of the Govern-
ment, the policy toward the limitation of asylum, the
fact that the minister may call upon the commander to
protect the inviolability of the legation, the commander
should reply that he has no authority to promise to
receive any persons as refugees, and that the Regulations
of the service state that even in the waters of countries
where frequent insurrections occur, " officers should refuse
all applications for asjdum except when required by the
interests of humantiy in extreme and exceptional cases?
such as the pursuit of a refugee by a mob." Under these
circumstances, when the pursuit is by the regular troops,
the commander would not feel justified in interfering.
Should these persons, however, appear at the side of his
vessel seeking shelter under exceptional circumstances,
he would be forced to decide at the time upon the pro-
priety of receiving them.
Situation III, (b).
There is an insurrection in State X.
(b) The insurgents seize the Robin, a United States
merchant vessel in the harbor, and promising to recom-
pense the owners sail away with the vessel. The owners-
request the commander of the United States war vessel
to recover the Robin in case he meets the vessel. The
commander meets the Robin on the high sea.
What, if anything, should the commander do?
The commander of the United States war vessel is justi-
fied in using such force as is necessary to recover the
vessel which has been seized by the insurgents.
INSURGENTS AS PIRATES. 35
NOTES ON SITUATION III, (b) .
Insurgents as pirates. — It has been maintained often
that insurgents committing an act similar to the one
above mentioned are to be treated as pirates.
The statement of the Situation, however, admits the
existence of an insurrection which is regarded as ll a form
of struggle, varying according to circumstances, but
usually an armed struggle between two organized groups
or parties within a state for public political ends."
(Insurgency, Lectures Naval War College, 1900, p. 3.)
In many cases also the parent state may declare the
insurgents to be pirates. This matter was very fully
considered by the United States, in 1885, in consequence
of the insurrection in Colombia at that time, when the
President of the United States of Colombia declared cer-
tain vessels ' ' occupied by the rebels to be pirates ' ' and
to be " beyond the pale of international law."
In discussing the treatment of these vessels, Mr.
Wharton, solicitor for the Department of State, gave an
opinion which, since 1885, has been several times affirmed,
as follows :
The Government of the United States can not regard as piratical vessels
manned by parties in arms against the Government of the United States of
Colombia, when such vessels are passing to and from ports held by insur-
gents, or even when attacking ports in the possession of the National Govern-
ment. In the late civil war the United States, at an early period of the strug-
gle, surrendered the position that those manning the Confederate cruisers
were pirates under international law. The United States of Colombia can
not, sooner or later, do otherwise than accept the same view. But, how-
ever this may be, no neutral power can acquiesce in the position now taken
by the Colombian Government. Whatever may be the demerits of the
vessels in the power of the insurgents, or whatever may be the status of those
manning them under the municipal law of Colombia, if they be brought by
the act of the National Government within the operation of that law, there
can be no question that such vessels, when engaged as above stated, are not,
by law of nations, pirates; nor can they be regarded as pirates by the United
States. (U. S. Foreign Relations, 1885, p. 212. )
It is not denied, of course, that a local government may
define what actions and what persons it will regard as
piratical, but such local definition has significance only
for the state making the definition. Indeed the United
States Constitution specifically gives to Congress the
36 [H8URGENTS AND FOREIGN VE8SELS.
right "to define and punish piracies and felonies com-
mitted, on the high seas and offences against the laws of
nations. ?; The definition of piracy in the international
sense is, however, not dependent on these municipal
Policy oj the United States. — As President Cleveland
said, in his Message of December 8, 1885: "A question of
much importance was presented by decrees of the Colom-
bian Government, proclaiming the closure of certain
ports then in the hands of insurgents, and declaring ves-
sels held by the revolutionists to be piratical and liable to
capture by any power. To neither of these propositions
could the United States assent. An effective closure of
ports not in the possession of the government, but held
by hostile partisans, could not be recognized; neither
could the vessels of insurgents against the legitimate
sovereignty be deemed Jiostes humani generis within the
precepts of international law, whatever might be the
definition and penalty of their acts under the municipal
law of the state against whose authority they were in
revolt. The denial by this Government of the Colombian
propositions did not, however, imply the admission of a
belligerent status on the part of the insurgents. ' '
The declaration by a state that a certain vessel or cer-
tain vessels are piratical does not make them such accord-
ing to international law, nor does it give a foreign state
a right to treat them as piratical. Mr. Bayard gave the
opinion of the State Department, in 1885:
The principle upon which I based my note of April 24 was, generally,
that there can not be paper piracy with international effects and obliga-
tions any more than there can be a paper blockade of effective character.
In the one case, as in the other, no force or effect can be communicated by
a municipal decree which is not inherent in the case itself, and I felt con-
strained to announce to you that this Government could not deem itself
bound in any manner by such a decree, either as entailing any interna-
tional obligation or as conferring upon it any derived jurisdiction in the
premises. The position seemed so self-evident and is so abundantly sup-
ported by authority that I deemed it quite unnecessary to enter into argu-
ment or collation of precedents to sustain the simple announcement.
It would seem, however, that you have misunderstood that announce-
ment, and.you now seek to controvert on the assumption that it recognizes
the vessels mentioned in the Colombian decree as legitimate belligerents,
thereby divesting them of whatever inherent piratical character they may
POLICY OF POWERS. 37
possess. Your argument, and the pre&edent of the Magellan pirates ad-
duced by you, aim to show that vessels of this character, even though
ostensibly in the service of a hostile insurrection, may be tainted with
piracy to a degree to bring them within the jurisdiction of a foreign state
whose forces may have captured them on the high seas.
This position I am not disposed to deny, but I then did feel bound to
deny, and do so still, that a municipal decree of a sovereign can communi-
cate to a single vessel, or in comprehensive terms to a class of vessels, a
character of piracy which they may not already possess under the circum-
stances surrounding each particular vessel, or that a foreign sovereign can
derive or exercise any power, obligation, or jurisdiction in virtue of such
a municipal decree which it does not already possess in the nature of the
case under the law of nations. Were any foreign government to exercise
such right or jurisdiction in the case of a vessel found committing acts in
themselves piratical, a decree of this character could only, by the widest
stretch, be deemed an acquiescence in and voluntary confirmation of the
power and right so exercised by the law of nations. It could not be held
to confer the right to capture and judge an actual pirate any more than,
assuming the contrary position by way of hypothesis, it could deny or
assume to annul that right in a given case. (U. S. Foreign Relations,
1885, p. 273.)
The declaration by a foreign state that certain vessels
in revolt against the established government are pirat-
ical is often practically an admission of their insurgency
and of the fact that hostilities exist with the faction in
control of the ships, for piracy in the international law
sense is determined by the intent of the act and not by
Attitude of Great Britain. — The Huascar, a Peruvian
ship of war, was seized by its crew in a revolt in 1877.
The Government of Peru declined to be responsible for
the acts of the rebels. The Huascar boarded British ves-
sels, seized coal, and took off passengers. a On the ques-
tion being brought before the House of Commons, the
attorney-general expressed his opinion that the Huascar
was not a belligerent, but a rover committing depreda-
tions which made her an enemy of her Britannic Majesty,
and therefore it could not be disputed that the admiral
could wage war upon her. If she were a belligerent, or
the vessel of a belligerent power, to which the representa-
tion of the British Government was under an obligation
to extend belligerent rights, the proceedings of the admiral
might be open to censure. But to make out that she
was a vessel belonging to a belligerent power there must
38 INSUBGENT9 AND FOKKION VESSELS.
be a rebellion; the rebels also must have established
something like a government, to do certain acts upon the
high seas against neutral ships. If a cruiser did com-
mit acts of depredation without authority, the neutral
states would demand satisfaction. If the Huascar was
a belligerent, she would be responsible. In strictness the
crew of the Huascar were pirates and might have been
treated as such; but it was one thing to say that, accord-
ing to the strict letter of the law, people have been guilty
of acts of piracy and another to advise that they should
be tried for their lives and hanged at Newgate. The
Huascar was called upon to surrender, and she refused.
The admiral took steps accordingly to make her sur-
render. " (Halleck, Baker's ed. International Law, Vol.
I, p. 449.)
• Piracy according to international law. — Piracy in the
international sense is not a political act, but an act imply-
ing animus furandi, an act entered upon in a spirit of
robbery or marked violence. It is not aimed against
any particular state or the citizens of any particular state.
Lawrence gives, among the marks of a piratical act, that
it be "an act of violence adequate in degree;" " an act
done outside the territorial jurisdiction ot any civilized
state;" and "an act the perpetrators of which are desti-
tute of authorization from any recognized political com-
munity;" or, as Lawrence says, in summarizing, "An act
to be piratical must be of adequate violence; it must be
committed outside the jurisdiction of a civilized State;
and it must possess no national authorization." (Inter-
national Law, section 122, p. 210.)
Application to the Situation. — It is evident that it is not
the policy of the United States to regard insurgent ves-
sels as pirates, and hence this vessel while seizing a vessel
within the harbor of State X can not be considered as a
pirate from the point of view of international law.
The act is committed within the jurisdiction of State
X and in derogation of the sovereignty of State X. It
is unquestionably a violation of the laws of State X, and
for the act State X may prescribe the punishment.
As the act is not piracy in fact or in intent, the United
THE NAVY AND MERCHANT VESSELS. 39
States commander should not, if he overtakes the vessel
on the high seas, treat it as piratical.
By the statement of the situation, the commander of
the United States war vessel does meet the seized vessel,
the Robin, on the high seas.
He ma}~ not treat the case as one of piracy, but it cer-
tainly is an offense which comes within his jurisdiction.
This is a case of a merchant vessel which needs his pro-
tection and the regulation of the service would apply.
U. S. Navy Regulations, 1900, 309, prescribe that,
So far as lies within their power, commanders-in-chief and captains of
ships shall protect all merchant vessels of the United States in lawful occu-
pations and advance the commercial interests of this country, always acting
in accordance with international law and treaty obligations.
The Robin has been seized within the jurisdiction of
the State X and is now upon the high seas. It is evident
that State X is not in full control of the port in which
the Robin was seized. From the nature of the case, also,
the insurgents who seized the Robin, while not pirates,
are not a responsible body and can not be dealt with as
.such by the United States. As they are not belligerents
the seizure of the Robin can not be permitted under the
right of angary. Nor does the promise to make compen-
sation to the owners in any way change the case, as the
insurgents who seized the Robin are not a responsible
body at the time and their future responsibility is uncer-
tain. That the seizure is not with the approval of the
owners is evident from the request of the owners that
the vessel be recovered by the United States war vessel.
2" In 1885, in Colombia, certain vessels belonging to
neutrals were taken by insurgents in a manner somewhat
similar to that in the case of the Robin. At this time
Mr. Wharton /Solicitor for the Department of State, gave
his opinion as follows : — - -
~\Vhen vessels belonging to citizens of the United States have been seized
and are 'now navigated on^the high seas by persons not representing any
government or belligerent power recognized by the United States, such
vessels may be captured and rescued by their owners, or by United States
cruisers acting for such owners : and all force which is necessary for such
purpose may be used to make the capture effectual. (U. S. Foreign Rela-
tions, 1885, p. 212.)
40 INSURGENTS AND FOREIGN VESSELS
From the above, which is an accepted precedent, it is
evident that the commander of the United States war
vessel would be justified in seizing the United States
merchant vessel which the insurgents had taken.
Conclusion. — The commander of the cruiser of the
United States is justified in making a capture of the
Robin. What disposition shall he make of the captured
vessel ? While the naval officer is justified in making the
capture, he has not authority, except in extreme in-
stances, to dispose of or determine the fate of a captured
vessel. That authority belongs to another branch of the
Government. He should therefore send in the captured
vessel, if possible, to a port of his own country with a
report of the case. If distance or other circumstances
prevent such action, he should take the vessel under his
authority to some port near by and obtain instructions
from his home Government as to the further disposition
of the vessel.
The question of damages from State X on account of
seizure of the Robin within that State's jurisdiction is a
matter for diplomatic negotiation.
Situation III, (c) .
There is an insurrection in State X.
(c) State X charters a United States merchant vessel to
transport troops to the seat of insurrection. When the
vessel is about to land these troops it is captured by the
insurgents. The captain of the United States merchant
vessel appeals for assistance to the commander ot a United
States war vessel near by.
(1) What action, if any, should he take?
(2) How would he act if the troops of State X had been
landed before the capture of the vessel?
(1) The commander of the United States war vessel
should reply that "while the United States would not
interfere to prevent an American vessel from voluntarily
carrying arms and troops in the service of a government
trying to put down an insurrection, it would leave the
vessel and its crews so voluntarily entering into such
service to the consequences of establishing such a rela-
FOREIGN VESSEL AS TRANSPORT. 41
(2) Provided the merchant vessel has fulfilled its char-
ter contract and is no longer in the service of State X after
landing the troops, the commander of the United States
war vessel should extend to the merchant vessel full pro-
NOTES ON SITUATION III, (c) .
Nature of the relations.— -The fact of the insurrection is
admitted. State X enters into a contract with the mer-
chant vessel of the United States to transport troops to
the seat of the insurrection.
As there is no belligerency from the point of view of
international law, this becomes a simple commercial con-
tract in which certain service is rendered under a certain
agreement. The nature of the service is a question of
It has been held by the Supreme Court of the United
States that a recognition of belligerency is not necessary
in order to bring into operation the neutrality laws of the
United States. (166 U. S., 49.)
"It may be said to be established that the parties to
a conflict that has attained the proportion of an insur-
rection shall observe, as far as possible, the rules of
civilized warfare." (Insurgency, Lectures, Naval War
College, 1900, p. 13.)
It is generally admitted at the present time that insur-
gents are not criminals when pursuing public political
ends, and also that insurgents are free to carry on legiti-
mate hostilities, though it is maintained that the conduct
of these hostilities should not unduly interfere with neu-
tral commerce. Admiral Benham, at the time of the
Brazilian revolt of 1893-94, maintained that while neu-
tral commerce was liable to interruption during the actual
continuance of active hostile operations in time of an
insurrection, at other times ordinary commerce should
not be interrupted because of such internal disturbances.
In case of State X there is no belligerency in the sense
in which the word is used in international law. There is,
however, an insurrection, which is held to bring into ope-
ration certain of the laws applying to a state of belliger-
ency so far as the parties to the struggle are concerned.
Just how far third states and the citizens of other states
42 INSURGENTS AND FOREIGN VESSELS.
are affected by the existence of insurrection in a given
state is not yet determined.
Blue-fields, 1894- — An instance somewhat similar to the
one under consideration occurred in 1894, at the time of
the Bluefields insurrection. The conditions, as shown
from the official correspondence, were as follows:
Mr. Baker to Mr. Gresham.
Legation of the United States,
Managua, August 8, 1894 — (Received September 4).
Sir : On the evening of August 2 Mr. Gustavo Guzman came to this lega-
tion bearing, as he informed me, a verbal message from the President, to the
following effect :
First. That this Government had sent a large number of troops to San
Juan del Norte, where they had just arrived, on their way to Bluefields.
Second. That this Government had chartered the steamboat Yulu, a boat
owned by the Emory Company of Boston, flying the United States flag, to
transport these troops from San Juan del Norte to Bluefields.
Third. That now the captain and crew of the Yulu, all Americans, refuse
to carry the soldiers, for the reason that Commander O'Neil, of the U. S. S.
Marblehead, had issued a proclamation forbidding vessels under the flag of
the United States from "carrying bodies of armed men or military supplies "
for either "party" to the controversy in the Mosquito territory.
Fourth. The President, therefore, requested that I, as United States min-
ister, issue an order to the captian and crew of the steamer Yulu, assuring
them that they run no risk in disobeying the warning of Commander O'Neil.
I could not believe it to be my duty to comply with this request ; but,
at the suggestion of Mr. Guzman, I gave him the accompanying tele-
gram, marked "Inclosure No. 1," which he had liberty to send if he so
desired. Inclosure No. 2 is a copy of the proclamation of Commander
O'Neil referred to.
I have, etc.,
Mr. Baker to Commander O'Neil.
Legation of the United States,
Nicaragua, Costa Rica, and Salvador,
Managua, August 2, 1894-
U. S. S. Marblehead, Bluefields: .
The Nicaraguan Government had chartered" as I learn, the steamer Yulu r
belonging to a company of Americans, to carry troops from Grey Town to
Bluefields. The President desires to know if this is contrary to your order
commanding the neutrality of American citizens. Please answer, in care of
Consul Braida, Grey Town.
United States Minister.
(Foreign Relations U. S., 1894, p. 321.)
COMMANDER o'NEILS NOTICE. 43
U. S. S. Marblehead,
Off Bluefields, Nicaragua, July 14, 1894.
To the owners, agents, and captains of vessels under the flag of the United
States trading in these waters:
In view "of the fact that there is in effect a revolution going on in the Mos-
quito Reserve between the chief of the said reserve and his followers and
the provisional council, which in a measure through its president represents,
or assumes to represent, the Government of Nicaragua, these parties being
in hostile attitude to each other, and the former being at present in posses-
sion at Bluefields, you are hereby cautioned and counseled not to interfere
with nor take part in the affairs of either faction by permitting vessels under
your charge to engage in any military operations, that is, not to carry bodies
of armed men or military supplies, knowing them to be such, for either
party, nor to assist in any hostile demonstration; and should either party
attempt to coerce you to do so, or interfere with you in the peaceful pursu-
ance of your legitimate business, you are advised to utter a vigorous protest,
to show this notice, and to communicate the facts of the case to me.
Commander, United States Navy.
(Foreign Relations, U. S., 1894, Appendix I, p. 321.)
It will be observed that Commander O'Neil had not, as
was intimated by the Nicaraguan representative, for-
bidden vessels under the United States flag "to carry
bodies of armed men or military supplies, knowing them
to be such, for either party, nor to assist in any hostile
demonstration." What he actually did was to caution
and counsel " owners, agents, and captains of vessels under
the flag ol the United States ' ' against such action. Subse-
quent events showed the wisdom of the notice issued as
cautionary by Commander O'Neil. The sworn statement
of the purser of the steamship Yulu, before Consular Agent
Seat, is as follows:
Affidavit of N. L. Latson.
United States Consular Agency,
Bluefields, Nicaragua, September 22, 1894-
This day, before me, the undersigned authority, personally came and
appeared Norman L. Latson, to me known, and on his oath declares that
heretofore, to wit, on or about the 3d day of August, 1894, affiant was purser
on board the American steamship Yulu, which arrived off Bluefields on the
3d day of August, 1894, having on board 500 or thereabouts Nicaraguan
soldiers and officials, among whom were Mr. Jose Madriz, Nicaraguan min-
ister of foreign affairs; General Portocarrero, judge-advocate, and Carlos
44 INSURGENTS AND FOREIGN VESSELS.
Lacayo, ex-commissioner of the Mosquito Reserve. Affiant further states
that upon approaching the U. S. S. Columbia, which was at anchor off Blue-
fields, the captain of the Yulu signaled that he had on board the above-
mentioned troops and soldiers under protest.
He was thereupon ordered by the U. S. S. Columbia to anchor alongside,
and was shortly afterwards boarded by Lieut. O. W. Lowry, of said vessel.
Lieutenant Lowry refused to allow the captain of the steamship Yulu to
disembark the Nicaraguan troops aboard until he had communicated with
Captain Sumner, of the steamship Columbia, who was in the town of Blue-
fields. He directed Captain Johnson to take the steamship Yulu into the
harbor of Bluefields and to come to an anchor there. Lieutenant Lowry
also placed aboard the steamship Yulu a boat's crew of 11 men, in charge of
Ensign Kuenzli, who was to prevent the disembarkation of the Nicaraguan
troops until the return of Lieutenant Lowry, who went into the town in the
steam launch of the Columbia to receive instructions from Captain Sumner.
Lieutenant Lowry offered to convey Minister Madriz and any of his officers
into the town in his steam launch, but the proffered offer was refused,
whereupon Lieutenant Lowry stated that he would return with Captain
Sumner's answer in the shortest possible time, probably two hours.
Affiant further states that the Nicaraguan officials were very indignant
at the refusal to allow them to disembark the troops at once, and indulged
in strong language against the action of the United States. As time passed
the excitement and indignation among them began visibly to increase. The
water tanks of the steamship Yulu had been left open by the Nicaraguan
soldiers during the night and all the fresh water allowed to escape, and the
aforesaid soldiers were clamoring for water during their detention. Finally,
some of the officials made signals to the Government wharf, about 50 yards
away, at which was stationed a force of Nicaraguan soldiers, and two boats
were sent out to the steamship Yulu in response. Affiant further states that
in the wheelhouse of the steamship Yulu were Ensign Kuenzli with two men,
the remainder at the time of the occurrence being disposed about the roof
of the upper deck. There were also present Carlos Lacayo, Ramon Enri-
quez, a merchant from Grey Town, Nicaragua, and the affiant, Norman L.,
Latson. The latter, leaning out of the window of the wheelhouse, heard
Minister Madriz, who was accompanied by Judge-Advocate Portocarrero,
order Captain Johnson, of the steamship Yulu, to take his vessel in to the
Government wharf at once and discharge the troops. This Captain Johnson
refused to do, stating that his vessel was in control of the officer from the
U. S. S. Columbia, and therefore not in his power to obey such a demand.
Affiant further states that thereupon Judge-Advocate Portocarrero,
closely followed by Minister Madriz, rushed into the wheelhouse of the
steamship Yulu. They were both white with anger, and Portocarrero had
m his right hand, with his finger on the spring, a clasp knife with a blade
about 8 inches long. Ensign Kuenzli sat on a portion of the steering gear
of the steamship Yulu, within a few feet of Portocarrero, and with his back
toward him. He was reading, but remarked later that he was aware some-
thing serious was impending. The two other men from the Columbia were
on the opposite side of the wheelhouse, looking out of a window, and with
their backs also turned to the Nicaraguan officials. Most of the rifles
CASE OF THE YULU. 45
belonging to the man-of-war's men were stacked in this wheelhouse, and
the Nicaraguans were aware that it would be almost impossible for the men
who were on the roof to reach them in case of sudden attack. There
were at least 100 Nicaraguans on the upper deck of the steamship Yulu,
and completely surrounding the wheelhouse.
When Madriz and Portocarrero rushed into the wheelhouse they gathered
around the two doors, which open onto the deck, and, with fixed bayonets
and drawn swords, listened to what transpired. Portocarrero commenced
a violent and insulting tirade against the United States, claiming, among
other things, ,that her action in refusing to allow Nicaraguan troops to
disembark was cowardly and the tyrannical oppression of a small and
defenseless country by a large and powerful one. Madriz agreed with him,
and stated that he considered this action an insult to Nicaragua through
him; he further said that they had agreed to wait two hours for an answer
and that nearly three had elapsed. Portocarrero then said, turning to
Madriz: "Let us make them take the ship to the wharf and disembark the
troops." Affiant then said: "You are making a serious mistake, General
Portocarrero, and do not understand the circumstances of this detention."
Portocarrero appeared to lose control of himself, and being seconded by
some encouraging exclamations from the crowd around the doors, he raised
his knife and, pointing toward the young officer, said to Madriz: "You give
the command and I will throw myself upon him, and we will take the ship in
to the wharf against any resistance on their part." At this instant, and
before Minister Madriz could reply, Captain Johnson, of the steamship Yulu,
stepped into the room and said that he saw smoke across the lagoon, and
believed that the launch was returning. Madriz then turned to Porto-
carrero, who still stood, knife in hand, and said: "We will wait and see
whether it is the launch; we will give them half an hour more, and if it is not,
we will go in anyhow." Both Lacayo and Enriquez endeavored to dissuade
Portocarrero from the position he had taken, but they were not listened to.
The smoke mentioned by Captain Johnson proved to be from the steam
launch of the Columbia, and in due time Lieutenant Lowry reached the
steamship Yulu with instructions from Captain Sumner to permit the dis-
embarkation of the Nicaraguan troops.
Affiant further states that from his knowledge of the mood and temper of
the Nicaraguan officials, and from the threats he personally heard expressed,
he deposes and says that he believes a disaster and massacre aboard the
steamship Yulu was only averted by the timely sighting of the Columbia's
Affiant further states that he is a native of the United States, born in the
State of New York, and for five years a resident of Nicaragua. He also
states that he thoroughly understands Spanish, in which language the above
remarks were made.
Norman L. Latson.
Sworn to and subscribed before me this September 22, A. D. 1894.
B. B. Seat,
United States Consular Agent.
(Foreign Relations, U. S., 1894, Appendix I, p. 344.)
46 IN8UKGENT8 AND FOREIGN VESSELS.
From this statement it is seen that the troops were
allowed to disembark and the captain was permitted to
depart with his vessel.
This precedent would seem to indicate that the action
of the commander might be limited to the issuing of the
notice of caution and council so far as the transportation
and landing of the troops may enter into the case.
Effect of charter. — In the situation under consideration,
however, as the troops are about to land, the merchant
vessel chartered by State X is captured by the insurgents
and the captain appeals to the commander of the United
States war vessel for assistance. There is no war in the
full international sense in State X, yet as was said in the
case of The Three Friends (166 U. S., p. 63), there is a
"distinction between recognition of belligerency and
recognition of a condition of political revolt, between
recognition of the existence of war in a material sense and
of war in a legal sense." The court further held that the
neutrality laws of the United States extended in this time
of war in a material sense to prohibition of certain acts
forbidden to a neutral in the time of war in a legal sense.
It is affirmed that the merchant vessel here considered
Ls a United States vessel and is consequently entitled to
proper protection as such. In general the character of a
merchant vessel is determined by its flag and its papers.
In this case there is no intimation that the papers of the
United States merchant vessel are not correct in all
respects. The one fact is that the merchant vessel is
engaged under contract with State X in transporting
troops to the seat of insurrection when she is seized as the
troops are about to land.
The vessel has not completed her contract with State X.
The vessel is not captured on the high seas. On this last
account the United States war vessel would ordinarily
hesitate to exercise jurisdiction because within the three-
mile limit the local jurisdiction is supposed to prevail.
Under certain circumstances when a state is disturbed
by domestic violence a commander would be justified in
interfering for the protection of the interests and per-
sons of citizens of his own state.
This vessel, by accepting the charter from State X foi
CHARTER FOR TRANSPORT SERVICE. 47
the transportation of troops to that extent, engages in the
military expedition against the insurgents and assumes
the consequent risks. Halleck (International Law,
Baker's ed., I, p. 438), says: "The national character of
ships is, as a general rule/ determined by that of their
owners. But, as hereafter shown, this rule is subject to
many exceptions, a hostile character being not infre-
quently impressed upon the vessel while its owners are
neutrals or friends. Thus, a hostile flag and 'pass, the
carrying of military persons or dispatches of an enemy,
trading between enemy's ports, etc., will give to a vessel
a hostile character, no matter what may be that of its
owners." And again (Vol. II, p. 97) "So, a ship belong-
ing to a neutral owner may acquire a hostile character
from the trade in which she engages or some particular
act which she may do."
In speaking of several cases where neutral vessels enter
belligerent service in time of war Dana, in a note to
Wheaton's International Law (note 228, p. 643), says:
If a vessel is in the actual service of the enemy as a transport, she is to be
condemned. In such case it is immaterial whether the enemy has got her
into his service by voluntary contract, or by force or fraud. It is also, in
such case, immaterial what is the number of the persons carried, or the
quantity or character of the cargo; and, as to despatches, the court need
not speculate upon their immediate military importance. It is also unim-
portant whether the contract, if there be one, is a regular letting to hire,
giving the possession and temporary ownership to the enemy, or a simple
contract of affreightment. The truth is, if the vessel is herself under the
control and management of the hostile government, so as to make that
government the owner pro tempore, the true ground of condemnation should
be as enemy's property.
The quotations apply to a state of war.
Mr. Bayard, in a letter of December 3, 1886, says
"If in that (a foreign) country," said Mr. Webster, "he (a citizen of the
United States) engages in trade or business he is considered by the law of
nations as a merchant of that country;" and in this and other cases ruled in
this Department on this principle, it was held that citizens of the United
States who engage in insurrectionary movements in Cuba thereby expose
their property to seizure by Cuban authorities, and had no claim on this
Government to secure indemnity for them from Spain. Nor can Spanish
subjects (under similar circumstances) make claim against the United
States for losses incurred by them through confiscation of their goods in the
late civil war, such confiscation being in conformity with the laws of war."
(Ill Wharton, International Law Digest, p. 968.)
48 IN8URGENTS AND FOREIGN VESSELS.
It has been affirmed that even "by voluntarily remain-
ing in a country in a state of civil war they (subjects of
foreign powers) must be held to have been willing to
accept the risks as well as the advantages of that domicil. ,,
(Ibid, II, p. 578.)
From such statements it is evident that those who
voluntarily come within the range of insurgent military
action must assume the responsibility thus incurred.
The United States merchant vessel voluntarily accepted
a charter which in its purpose was to bring the vessel as
a part of an actual military expedition within the field of
what the Supreme Court has called "war in a material
sense;" and, more than that, the vessel has distinctly
identified itself with the military forces of State X to the
extent of transporting its troops to the seat of hostilities.
Under these conditions the vessel is wholly within the
jurisdiction of State X for its charter purpose and must
look to State X for protection and assistance.
Opinion of Department of State: — The Government of
the United States has set forth its position in the corre-
spondence as printed in the Foreign Relations for 1897
(p. 331). This position will be seen to accord with the
general line of precedent and argument which has pre-
vailed in the United States.
THE TRANSPORTATION OF CENTRAL AMERICAN TROOPS AND MUNITIONS OF
WAR IN UNITED STATES VESSELS.
Mr. Rodriguez to Mr. Sherman.
Legation of the Greater Republic of Central America,
Washington, April 17, 1897.
Sir: Conformably to our conversation of yesterday, I have the honor to
address this communication to your excellency.
My Government desires to transport troops and implements of war from
a port in Honduras, or from the Confederation, to any port in the same
State, on the Atlantic or Pacific, with the object of reestablishing order
along the first of the above-named coasts; and in the event of being able
to charter, for this purpose, American vessels, it trusts the consuls of the
United States at Ceiba and Trujillo, or at any other place along the said
coasts, will put no obstacles in the way. My Government solicits this
friendly office of your excellency without prejudice to the right which it
may have in accordance with international law.
I reiterate, etc., J. D. Rodriguez.
POSITION OF DEPARTMENT OF STATE. 49
Mr. Sherman to Mr. Rodriguez.
Department of State,
Washington, April 20, 1897.
Sir: I have the honor to acknowledge the receipt of your note of the
17th instant, in which, referring to our conversation of the 16th, you state
the desire of your Government to transport troops and munitions in the
same State on the Atlantic or the Pacific, with the object of reestablishing
order along the Atlantic coast, and that in the event of your Government
being able to charter American vessels for this purpose it trusts that the
consuls of the United States at Ceiba and Trujillo, or at any other place
along the said coast, will put no obstacles in the way.
If, as would appear, the proposed chartering of American vessels by your
Government contemplates a regular contract with the owners or agents
ol such vessels, not compulsory but voluntary on their part, it is not per-
ceived how the consuls of the United States could interpose any valid
objections to a legitimate transaction which the representatives of the
American owners may be legally competent to effect.
Copy of this correspondence will,, however, be sent to the United States
minister to Guatemala and Honduras and to the consular officers in the
latter country for their information. /
Accept, etc., John Sherman.
Mr. Sherman to Mr. Coxe.
Department of State,
Washington, April 21, 1897.
Shi: I inclose herewith for your information copy of notes from and to
Senor J. D. Rodriguez, the minister of the Greater Republic of Central
America at this capital, in regard to the desire of his Government to char-
ter American vessels for the purpose of transporting troops and munitions
of war with object of reestabhshing order along the Atlantic coast.
You will observe the Department's reply that if the proposed charter-
ing of American vessels by his Government contemplates a regular contract
with owners or agents of such vessels, not compulsory but voluntary on
their part, it can not be perceived how the consuls of the United States
could interpose any objections to a legitimate transaction which the rep-
resentatives of the American owners may be legally competent to effect.
If, however, there should be any appearance of coercion on the part of
the employing Government, the consul's intervention would be justified.
The owners of the vessels should also understand that they can not expect
the United States to intervene in their behalf should the employing Gov-
ernment fail to pay them for their services, for while the United States
would not interfere to prevent an American vessel from voluntarily carry-
ing arms and troops in the service of a Government trying to put down
an insurrection, it would leave the vessel and its crews so voluntarily enter-
ing into such service to the consequences of establishing such a relation.
50 INSURGENTS AND FOBEIGN VESSELS.
Should a seaman employed for other services desire to be discharged, he
ought not to be compelled to serve in the transportation of arms and
Respectfully, yours, John Sherman.
(Foreign Relations U. S., 1897, p. 331.)
Conclusion — (1). The commander of the United States
war vessel should therefore reply that "while the United
States would not interfere to prevent an American ves-
sel from voluntarily carrying arms and troops in the
service of a government trying to put down an insurrec-
tion, it would leave the vessel and its crews so volun-
tary entering into such service to the consequences of
establishing such a relation."
The issue of any such notice of caution and counsel as
that issued by Commander O'Neil is not mandatory,
though in may be, on occasion, advantageous.
(2) In the situation in which the troops had already
been landed before the capture of the merchant vessel
the relations may be materially changed, provided the
charter provision extend merely to the transportation of
the troops to the seat of the insurrection, and provided
that the merchant vessel has met the provisions of the
contract and is no longer connected with the expedition.
As this is not war in "the legal sense," but only "in
the material sense," the vessel has simply performed a
mercantile act for the established Government, and upon
its completion the vessel resumes its status as a merchant
vessel of the United States.
The commander should therefore extend to the vessel
the ordinary protection and would not permit capture of
the vessel no longer concerned in the insurrection, or
if the vessel had been captured after fulfilling its contract
he should demand and secure its immediate release. The
insurgents are not a responsible body. They have no
prize courts or other means of enforcing the laws of war.
They are therefore entitled to use force against neutrals
only when this is absolutely essential in the actual con-*
duct of active hostilities.
Mr. Hay has clearly enunciated the position in a lettei
to the Secretary of the Navy of November 15, 1902, in
which he says.
ASYLUM ON MERCHANT VESSEL. 51
But in no case would the insurgents be justified in treating as an enemy
a neutral vessel navigating the internal waters, their only right being, as
hostiles, to prevent the access of supplies to their domestic enemy. The
exercise of this power is restricted to the precise end to be accomplished.
No right of confiscation or destruction of foreign property in such circum-
stances could well be recognized, and any act of injury so committed
against foreigners would necessarily be at the risk of the insurgents. The
question of the nature and mode of the redress which may be open to the
government of the injured foreigners in such a case hardly comes within
the purview of your inquiry, but I may refer to the precedents heretofore
established by this Government in the enunciation of the right to recapture
American vessels seized by insurgents.
I have the honor to be, sir, your obedient servant,
(International Law Situations, Naval War College, 1902, p. 82.)
Situation III, (d).
There is an insurrection in State X.
(d) Mr. Smith, a citizen of the United States, is impli-
cated in this insurrection in State X, and is sent out of
the country. Mr. Smith, as a passenger upon a vessel
of State Y, subsequently enters a port of State X. While
upon the vessel he is arrested by the authorities of State
X. He then appeals to the commander of a United
States war vessel to obtain his release, stating that the
action of the authorities of State X was illegal and
What action, if any, should the commander take?
The commander could not claim the delivery or release
of Mr. Smith to him, "but would have to limit his action
to the exercise of good offices, so far as possible in con-
junction with" other representatives of the United States
to secure for Mr. Smith "fair and open process of law,
with every opportunity for defense, and if convicted,
leniency of treatment." He should, if possible, warn
Mr. Smith of the risk he runs in again entering the juris-
diction of State X. It is a general principle that rep-
resentatives of the United States in a foreign harbor
"can neither assist in nor resist the orderly operation of
the law of the port."
NOTES ON SITUATION III, (d) .
Questions suggested by the Situation. — Two questions
naturally arise in connection with this situation, (a) the
question of asylum for insurrectionists upon merchant
52 ASYLUM TO INSURRECTIONIST.
vessels, and (b) the question of intervention for the pro-
tection of those involved in insurrection, who, after being
sent out of the State, return to its jurisdiction upon a
foreign merchant vessel.
The statement by Mr. Smith that "The action of the
authorities of State X was illegal and unjustifiable "
involves other questions also.
The general position is expressed by the Department
The instructions to diplomatic officers of the United States provide in
regard to citizens of the United States that the diplomatic officers should
countenance and protect "citizens" before the authorities "of the foreign
country" in all cases in which they may be injured or oppressed, but their
efforts should not be extended to those who have been willfully guilty
of an infraction of the local laws. It is their duty to endeavor, on all
occasions, to maintain and promote all rightful interests and to protect
all privileges that are provided for by treaty, or are conceded by usage.
If representations made to the authorities of the countries fail to secure
proper redress the case should be reported to the Department of State.
The vessel upon which Mr. Smith is a passenger
belongs to State Y. The commander of the war vessel
of the United States has, of course, no jurisdiction over
this vessel under ordinary circumstances. He might
at any time use his good offices to prevent, so far as
possible, injustice to a citizen of the United States.
After his arrest Mr. Smith is within the jurisdiction of
State X. The question then becomes one between the
United States and State X, and if the arrest is illegal
there may also be a case between State Y and State X.
Whether Mr. Smith, who has been concerned in stirring
up opposition against State X, can claim any immunity
from the fact that he is on a merchant vessel or a pas-
senger vessel of a foreign state within a port of State X
is one of the points to be settled. The commander of
the war vessel would be justified in any case in demand-
ing that the ordinary procedure for arrest of offenders
against State X be followed, so far as the exigencies of
the disturbed condition of State X permitted. Whether
he could demand more than this and a fair trial for the
offense committed, involves the matter of asylum for
political offenders upon private vessels of a foreign
state in the time of an insurrection within a given state.
CASE OF GENERAL BARRUNDIA. 53
(a) The question of asylum for insurrectionists upon
The opinions rendered at various times on the sub-
ject are not entirely in accord.
The Barrundia case. — The case of General Barrundia
has been particularly discussed.
In a long dispatch bearing the date of November 18,
1890, Mr. Blaine discusses the case of General Barrundia,
who had been shot while resisting with force arrest on
board the Pacific mail steamer Acapulco, sailing under
the American flag and plying between Pacific ports.
General Barrundia had secured passage for Panama,
and had embarked at a Mexican port. He was a political
exile from Guatemala. The captain of the Acapulco
requested of Mr. Mizner information as to what he should
do in reply to the Guatemalan demand for the arrest
of General Barrundia when the Acapulco anchored in a
Guatemalan port. After a telegram, which the cap-
tain of the Acapulco did not regard as sufficient, Minister
Mizner sent to the captain of the Acapulco the following
Mr. Mizner to Captain Pitts.
United States Legation,
Guatemala, August 27, 1890 — 10.30 p. m.
Sir: If your ship is within 1 league of the territory of Gautemala, and
you have on board Gen. J. M. Barrundia, it becomes your duty, under
the laws of nations, to deliver him to the authorities of Gautemala
upon their demand, allegations having been made to this legation that
said Barrundia is hostile to and an enenry to this Republic. Guaranties
have been made to me by this Government that his life shall not be in
danger, or any other punishment inflicted upon him than for the causes
stated in the letter of Seiior Anguiano to Consul-General Hosmer, dated
I have, etc., Lansing B. Mizner,
United States Minister.
Capt. W. G. Pitts,
Commanding Pacific M. S. S. Co.'s Steamship Acapulco.
(For. Relations of U. S., 1890, p. 85.)
54 ASYLUM TO INSURRECTIONIST.
Commander Reiter had telegraphed to Minister
Mizner on August 27. 1890, at 8 p. m., as follows:
San Jose de Guatemala,
August 27, 1890.
Mizxer, United States Minister:
Barrundia expected in steamer. As peace is declared, I suggest that
you ask Government to permit Thetis to take him to Acapulco, we acknowl-
edging their municipal rights over steamer. Steamer Acapulco in sight.
On the following day Commander Reiter sent a letter
detailing the course of events:
Commander Reiter to Mr. Mizner.
U. S. Ranger, August 28, 1890.
Dear Sir: On receipt of your telegram about 6.30 p. m. yesterday,
I went ashore and sent one to you at 7 p. m. I requested the commandant
to postpone action until I received a reply, which he declined to do. I
waited until after 9 o'clock for a reply from you, and believe that my
dispatch did not go or that your reply was delayed, as I did not receive
it until 9.30 this morning. Am sorry my reply was too late.
The commandant did not take any action last night, but did to-day.
At about 2.30 we thought we heard firing on board the Acapulco, and a
few minutes after the Guatemalan flag was hauled down from the fore
and the United States flag hoisted. I then thought you had come down
and were on board, but learned later that it was intended to call assistance.
Lieutenant Bartlett soon came on board from the Acapulco and reported
that the commandant was on board the Acapulco, and that promiscuous
firing had been going on, and that the captain desired protection. I
immediately started, and was followed a few minutes later by Lieutenant
Harris with an armed guard of marines. On arrival I found that the
commandant had left with the body of Barrundia, and that all was quiet,
so I sent Lieutenant Harris back.
The following is as near as I could learn what occurred: When the com-
mandant arrived on board he delivered your letter to Captain Pitts, and
they both went to the captain's room, where it was read. The captain
then sent the first officer, Mr. Brown, to send all cabin passengers below
and to warn the steerage passengers to keep forward. The captain and
commandant then went to Bammdia's room. They stood outside, one
on each side of the door, while Barrundia was inside smoking a cigarette.
The captain then told him of the letter, and he could not afford him further
protection. The commandant then said something to him in Spanish,
to which Barrundia replied, 'Bueno," when he quickly seized a revolver
from the upper berth and fired two or three shots out of the door. The
captain and commandant beat a hasty retreat aft and took refuge in a
stateroom, followed by Barrundia firing wildly. He passed out to the
port side of the deck, then forward across to the starboard side through
social hall, then back through social hall, and turned to go forward on
the port side, when he fell.
POSITION OF GOVERNMENT. 55
It was impossible to point out just where the detectives were all the
time. Some say they were on the starboard side, and first shot and
wounded Barrundia when he appeared on that side, but the certain result
was that he died where he fell, pierced by several bullets. He must have
been terribly excited or scared not to have done any damage to his enemies,
for he had everything his own way for a few minutes.
I am sorry you have not been well since your trip to Acajutla, but hope
you are all right again.
Commander Stockton returned yesterday. Everything is quiet at La
Union and Amapala.
Geo. C. Reiter.
Hon. L. B. Mizner,
United States Minister, Guatemala.
(Foreign Relations U. S., 1890, p. 86.)
President's statement. — The point of view of the United
States Government at the time was set forth in the
President's message of December 1, 1890:
The killing of General Barrundia on board the Pacific mail steamer
Aeapulco, while anchored in transit in the port of San Jose de Guatemala,
demanded careful inquiry. Having failed in a revolutionary attempt
to invade Guatemala from Mexican territory, General Barrundia took
passage at Aeapulco for Panama. The consent of the representatives of
the United States was sought to effect his seizure, first at Champerico,
where the steamer touched, and afterwards at San Jose. The captain of
the steamer refused to give up his passenger without a written order
from the United States minister. The latter furnished the desired letter,
stipulating, as the condition of his action, that General Barrundia's life
should be spared, and that he should be tried only for offenses growing
out of his insurrectionary movements. This letter was produced to the
captain of the Aeapulco by the military commander at San Jose, as his
warrant to take the passenger from the steamer. General Barrundia
resisted capture and was killed. It being evident that the minister, Mr.
Mizner, had exceeded the bounds of his authority in intervening, in com-
pliance with the demands of the Guatemalan authorities, to authorize
and effect, in violation of precedent, the seizure on a vessel of the United
States of a passenger in transit charged with political offenses, in order
that he might be tried for such offenses under what was described as martial
law, I was constrained to disavow Mr. Mizner's act and recall him from
(President's Message, December 1, 1890.)
Subsequent statements. — The position of the United
States has been officially stated in certain correspondence
subsequent to that upon the Barrundia affair. This cor-
respondence implies that the criticism of Mr. Mizner's
56 ASYLUM TO INSURRECTIONIST.
action in the case of General Barrundia was in conse-
quence of his assuming to give the Guatemalan author-
ities an order for the surrender of the accused, (General
GUATEMALA AND HONDURAS LOCAL JURISDICTION OVER FOREIGN MER-
Mr. Huntington to Mr. Gresham.
Pacific Mail Steamship Company,
35 Watt Street, New York, December 13, 1893.
Sm: Referring to our letter of the 11th of November last, we again beg
to call the attention of the Department to the request contained in the clos-
ing paragraph, reading:
"In view of the fact that it is not the first case on record in which the
commanders of our steamers plying on the Central American coast have
been called on to deliver to the authorities of the different republics passen-
gers on their steamers (accused of political offenses against said republics ) ,
and under their charge and protection of our flag, we would esteem it a favor
\f some definite action should be taken by the Department, by prompt inter-
vention in this instance, to secure protection in the future for passengers,
cargo, and mails carried by our steamers, and that a definite policy be out-
fined by our Government and communicated to this company, in order that
such instructions may be issued to our commanders as will properly secure
the protection of our ships and prevent any misunderstanding on the part
of our officers which might contravene and confuse the wishes of our Gov-
ernment and involve the Department, as well as this company, in needless
The Department will readily understand that without some such definite
indication of the policy of our Government in connection with these cases
it is impossible for us to lay down a fixed rule for the governance of our com-
manders on the Pacific coast under which they shall act intelligently in
We trust, therefore, that, in the light of all the facts in connection with
this incident now in the possession of the Department, it may be deemed
consistent to comply promptly with our request as above indicated.
I have, etc.,
C. P. Huntington, President.
Mr. Gresham to Mr. Huntington.
Department of State,
Washington, December 30, 1893.
Sm: I have given attention to your letter of the 13th instant, in which
you refer to the recent firing upon your steamer Costa Rica in the Hondurian
port of Amapala, and repeat the suggestion contained in your letter of
November 11, 1893, that a definite policy in respect to surrendering accused
criminals when claimed by the local authorities in a port of call be outlined
for the guidance of your commanders.
STATEMENT OF SECRETARY GRESHAM. 57
It is not practicable to lay down a general fixed rule applicable to the
varying conditions in such cases. As a comprehensive principle, it is well
established in international law that a merchant vessel in a foreign port is
within the local jurisdiction of the country with respect to offenses or offend-
ers against the laws thereof, and that an orderly demand for surrender of a
person accused of a crime by due process of law, with exhibit of a warrant
of arrest in the hands of the regularly accredited officers of the law, may not
be disregarded nor resisted by the master of the ship. On the same voyage
when the Amapala incident occurred Captain Dow appears to have acted
upon this principle in allowing the arrest at other ports, on proper judicial
warrant, of two or three other passengers accused of crime. That the pas-
senger may have come on board at the port where the demand is made or at
another port of the same country is immaterial to the right of local juris-
Arbitrary attempts to capture a passenger by force, without regular judi-
cial process, in a port of call may call for disavowal when, as in the present
case at Amapala, the resort to violence endangers the lives of innocent men
and the property of a friendly nation. Whether, if force be threatened, the
master of the vessel is justified in putting in jeopardy, by his resistance, the
interests committed to his care must be largely a question for his discretion.
It is readily conceivable that the consequences of futile resistance to over-
powering force may be such as to make the resistance itself unwarrantable.
The so-called doctrine of asylum having no recognized application to
merchant vessels in port, it follows that a shipmaster can found no exercise
of his discretion on the character of the offense charged. There can be no
analog}' to proceedings in extradition when he permits a passenger to be
arrested by the arm of the law. He is not competent to determine whether
the offense is one justifying surrender or whether the evidence in the case is
sufficient to warrant arrest and commitment for trial, or to impose condi-
tions upon the arrest. His function is passive merely, being confined to
permitting the regular agents of the law, on exhibition of lawful warrant,
to make the arrest. The diplomatic and consular representatives of the
United States in the country making the demand are as incompetent to
order surrender by way of quasi-extradition as the shipmaster is to actively
deliver the accused. This was established in the celebrated Barrundia case
by the disavowal and rebuke of Minister Mizner's action in giving to the
Guatemalan authorities an order for the surrender of the accused.
If it were generally understood that the masters of American merchant-
men are to permit the orderly operation of the law in ports of call, as regards
persons on board accused of crime committed in the country to which the
port pertains, it is probable on the one hand that occasions of arrest would
be less often invited by the act of the accused in taking passage with a view
to securing supposed asylum, and, on the other hand, that the regular resort
to justice would replace the reckless and offensive resort to arbitrary force
against an unarmed ship, which, when threatened or committed, has in
more than one instance constrained urgent remonstrance on the part of this
I am, etc., W. Q. Gresham.
(Foreign Relations U. S., 1894, p. 296, 297.)
58 ASVLTM TO IXSIRRECTIONIST.
Mr. Bayard's letter of November 3, 1885, implies that
"Neither a diplomatic nor consular officer can oppose the
taking of a supposed criminal from an American vessel in
port," and that of November 7, 1885, says: "Nor can he
order the surrender of such criminal." On March 12,
1885, Mr. Bayard states: " Vessels entering foreign ports
are, unless exempted by treaty, amenable to the jurisdic-
tion of the country."
Mr. Blaine's position in 1890 was to the effect that " the
practice in Spanish-American ports is to seek the consent
of the representative of the country to which the vessel
belongs." (Letter of November 18, 1890.) In the con-
clusion of the same letter Mr. Blaine, in speaking of the
Government, says: "On more than one occasion it has
permitted its legations and ships of war to offer hospital-
ity to political refugees. This it has done from motives
of humanity. Its views would not have been less pro-
nounced if, in addition to the humane aspects of the sub-
ject, it had also been confronted with the duty of pre-
venting the decks of its merchant vessels from being made
the theater of illegal violence, upon groundless and unlaw-
ful excuses and without the pretense of legal formality.
"For your course, therefore, in intervening to permit
the authorities of Guatemala to accomplish their desire
to capture General Barrundia I can discover no justifi-
The criticism of Mr. Mizners action seems to have been
based, therefore, upon his couise "in intervening to per-
mit the authorities of Guatemala to accomplish their
desire to capture General Barrundia.'" The precedents
cited in the long letter of Mr. Blaine do not all bear upon
tins point, however.
Later, on December 30, 1893, Mr. Gresham, as shown
above, arrives at the conclusion that "right of asj'lum
has no application to merchant vessels; masters, as well
as diplomatic and consular officers, can neither assist in
nor resist the orderly operation of the law of the port."
Changes in the Navy Regulations. — The United States
Navy Regulations themselves show to some degree the
change in attitude since the Barrundia case. The pro-
visions of the Regulations issued in 1893 are very
CHANGES IN NAVY REGULATIONS. 59
different in their tenor from those which have been
issued since that time. There has been a marked
limitation in the statements in regard to asylum. This
may be taken as an indication of a change of attitude
on the part of the Government. It is certainly sufficient
evidence for the determination of the line of action for a
naval officer of the United States.
The clauses relating to asylum are here printed. The
difference between the clauses of 1893 and the clause
of 1896 is such as to place the whole matter on a very
different basis. There is but slight difference in the
wording of the clauses of 1896 and 1900. The word
"local" is omitted in the issue of 1900.
The clause as issued in 1900 most nearly accords with
current opinion, as shown by writers upon international
Article 287, U. S. Navy Regulations, 1893.
1. In reference to granting of asylum, in the territorial waters of a
foreign state, the ships of the United States shall not be made a refuge
2. In the case of persons other than criminals they shall be afforded
shelter whenever it may be needed, to United States citizens first of all,
and to others, including political refugees, as the claims of humanity may
require and the service upon which the ships are engaged will permit.
3. The obligation to receive political refugees and to afford them an
asylum is in general one of pure humanity. It should not be continued
beyond the urgent necessities of the situation, and should in no case
become the means whereby the plans of contending factions or their
leaders are facilitated. The captain of a ship of the Navy is not to invite
or encourage such refugees to come on board his ship, but should they
apply to him his action shall be governed by considerations of humanity
and the exigencies of the service upon which he is engaged.
4. When a political refugee has embarked, in the territory of a third
power, on board a merchant vessel of the United States as a passenger
for purposes of innocent transit, and it appears upon the entry of such
vessel into the territorial waters that his life is in danger, it is the duty
of the captain of a ship of the Navy present to extend to him an offer of
Article 288, U. S. Navy Regulations, 1896.
The right of asylum for political or other refugees has no foundation
in international law. In countries, however, where frequent insurrections
occur, and constant instability of government exists, local usage sanctions
the granting of asylum; but even in the waters of such countries officers
should refuse all applications for asylum except when required by the
60 ASYLUM TO INSURRECTIONIST.
interests of humanity in extreme or exceptional cases, such as the pursuit
of a refugee by a mob. Officers must not directly or indirectly invite
refugees to accept asylum.
Article 308, U. S. Navy Regulations, 1900.
The right of asylum for political or other refugees has no foundation
in international law. In countries, however, where frequent insurrections
occur, and constant instability of government exists, usage sanctions
the granting of asylum; but even in the waters of such countries officers
should refuse all applications for asylum except when required by the
interests of humanity in extreme or exceptional cases, such as the pursuit
of a refugee by a mob. Officers must not directly or indirectly invite
refugees to accept asylum.
Article 308 of the United States Navy Regulations,
which prescribes the duties of officers in regard to grant-
ing asylum, does not sanction any direct or indirect
invitation to refugees to accept asylum.
The Government may of course permit, as Mr. Blaine
says, its ships of war "to offer hospitality to political
refugees," but without such authorization the naval
officer is at present forbidden to make such offer.
In other cases where the matter of asylum is in question
he is in general to remain passive.
The position taken in the Naval War College Manual
of International Law seems to be the one most favored
at present. In speaking of a political refugee, the Manual
says: "When, instead of preserving the asylum and
refuge gained by reaching a foreign country, he delib-
erately exposes himself to arrest and punishment by
entering the territorial waters of the country in which
he is considered an offender, he has no claim to the
protection of any other State/' (p. 30).
Conclusion. — From the above discussion it is evident
that in judging of the action of State X the commander
should seek to know:
(1) Whether the arrest was made in due form, so far
as the exigiencies of the disturbed condition of State
(2) Whether any treaty provisions between the United
States and State X touched upon the case of Mr. Smith.
(3) Whether the trial for the offense, if permitted
under the treaty and not otherwise prohibited, would be
ATTITUDE OF STATE DEPARTMENT. 61
To this extent Mr. Smith is entitled to the good offices
of the official representatives of the United States
Beyond this it is a general principle that representa-
tives of the United States in a foreign harbor "can
neither assist in nor resist the orderly operation of the
law of the port."
(b) The question of intervention for the protection of those
involved in insurrection who, after being sent out of the
disturbed State, return to its jurisdiction upon a foreign
The discussion thus far applies in the main to the
general subject of asylum upon merchant vessels.
The situation under consideration involves the par-
ticular phase of asylum in a case where a United States
citizen who has, after being sent out of State X because
of implication in the insurrection, returned upon a
merchant vessel to a port within the jurisdiction of
Attitude of the Department of State. — In the following
quotation from a letter to the Secretary of the Navy
from the Secretary of State, dated July 15, 1899, the
position is taken that Americans, having been allowed to
leave a foreign country in which they have been impli-
cated in revolution, by returning to that foreign country
place themselves beyond the power of intervention of
their own government in their behalf:
Sir: I have the honor to acknowledge the receipt of your letter of the
12th ultimo, inclosing a copy of one to you from Lieutenant-Commander
Kimball, U. S. Navy, commanding officer of the Vixen, at Bluefields, in
which he requests general instructions as to the policy of this Government
respecting the protection of such American citizens as, having taken part
in the recent insurrection at that place, were allowed to leave the country,
but who may again return thither and be apprehended and prosecuted
by the Nicaraguan authorities.
You request to be advised of the views of this Department on the subject.
In reply. I have the honor to inform you that an instruction, a copy of
which is herewith inclosed, was sent to our consul at San Juan del Norte
on May 13 last, informing him that Americans who were implicated in
that insurrection, and who have returned to Nicaragua, have placed
themselves beyond the power of this Government to intervene in their
behalf should they be recaptured.
62 ASYLUM TO INSURRECTIONIST.
The cases thus foreshadowed do not come under either the Barrundia
or the Gomez case referred to by Lieutenant-Commander Kimball. Those
persons were natives of the country, in transit, and on board an American
ship entering a port of the country without intent to land. The 33 men
in question were expelled from Nicaraguan territory, and it is apprehended
that they may attempt to reenter Nicaraguan jurisdiction. Many, if
not most of them, are understood to be citizens of the United States.
Effort should be made to warn such persons in time of the risk they run
in reentering Nicaragua, and, if occasion require, they might be temporarily
received on an American vessel before they land and before any process
of arrest under due warrant of law be attempted against them. If, how-
ever, they actually land, or are arrested by judicial authority on a merchant
ship in port before endeavoring to land, the naval commander could not
claim their release or delivery to him but would have to limit his action
to the exercise of good offices, so far as possible, in conjunction with the
consular representatives of the United States, to secure for them fair and
open process of law, with every opportunity for defense, and, if convicted,
leniency of treatment.
Conclusion. — While from this letter there may be an
implication that it applies only to persons who intend to
land in the state from which they have been expelled,
yet the right to arrest before landing is admitted. It
becomes very clear, then, that it is not the province of
representatives of the United States Government in
foreign ports to interfere to hinder the due process of
local judicial procedure.
It is however proper to use good offices to secure fair
trial and " leniency of treatment." A naval officer may
also receive on board temporarily such persons as Mr.
Smith "before any process of arrest under due warrant
of law be attempted against them," and "effort should
be made to warn such persons of the risk they run in
reentering" the state from which they have been sent.
The tendency seems to be toward the limitation of
the so-called right of asylum to more narrow limits
from }^ear to year, and it may now be said in the language
of the Regulations of the United States Navy "the
right of asylum for political and other refugees has no
foundation in international law."
Its exercise in advanced states is tolerated rarely, and
only under very exceptional circumstances, but is some-
what more frequently tolerated in case of disturbed
conditions in the less advanced states.
War exists between the United States and State X. A
war vessel of the United States enters a harbor of State
Y, a neutral. In the harbor is a supply ship of the United
States. The war ship is about to take on coal, oil, etc.,
from the supply ship, when the authorities of State Y
protest against the action as a violation of neutrality and
forbid the use of the port for such purposes, claiming that
it would be equivalent to allowing the port to be used for
the fitting out of an hostile expedition.
(a) Is the protest of State Y valid?
(b) What should the commander do?
(c) Would the case be different provided there was a
fleet of war vessels of the United States with supply ships
instead of the two vessels above mentioned?
(a) The protest of State Y is valid, as State Y has full
right to regulate the conditions of entrance and sojourn
of war vessels in her ports.
(b) The commander should heed the protest as valid.
(c) The presence of a fleet of war vessels with supply
ships would make it necessary for State Y to use greater
care to see that there should be no violation of neutrality.
NOTES ON SITUATION IV.
Jurisdiction over 'public vessels. — (a) The matter of
treatment of belligerent war vessels in neutral ports in
time of war has received much attention. There has
been a tendency toward uniformity in modern practice.
The question of jurisdiction of a foreign neutral state
over a war vessel of a belligerent has been quite fully set
forth in the opinion rendered by Chief Justice Marshall
in the case of the Exchange v. M'Faddon. This case has
been frequently cited as setting forth the fundamental
principles of jurisdiction and as showing that the juris-
diction of a state can' be limited 'only by self-imposed
restriction, and, further, that the state is itself the
64 SUPPLY SHIP IN NEUTRAL HARBOR.
exclusive judge of the nature of those restrictions. Yet
the determination of the limits of this jurisdiction is to be
in accord with the general principles set forth in the prac-
tice of the law of nations. This opinion is worthy of a
somewhat full presentation:
Marshall's opinion. — The jurisdiction of the nation within its own terri-
tory is necessarily exclusive and absolute. It is susceptible of no limitation
not imposed by itself. Any restriction upon it, deriving validity from an
external source, would imply a diminution of its sovereignt}* to the extent
of the restriction and an investment of that sovereignty to the same extent
in that power which could impose such restriction.
All exceptions, therefore, to the full and complete power of a nation
within its own territories must be traced up to the consent of the nation
itself. They can flow from no other legitimate source.
This consent may be either express or implied. In the latter case it is
less determinate, exposed more to the uncertainties of construction, but, if
understood, not less obligatory.
The world being composed of distinct sovereignties, possessing equal
rights and equal independence, whose mutual benefit is promoted by inter-
course with each other and by an interchange of those good offices which
humanity dictates and its wants require, all sovereigns have consented to a
relaxation in practice, in cases under certain peculiar circumstances, of that
absolute and complete jurisdiction within their respective territories which
This consent may, in some instances, be tested by common usage, and
by common opinion growing out of that usage.
A nation would justly be considered as violating its faith, although that
faith might not be expressly plighted, which should suddenly and without
previous notice exercise its territorial powers in a manner not consonant
to the usages and received obligations of the civilized world.
The full and absolute territorial jurisdiction being alike the attribute of
every sovereign, and being incapable of conferring extraterritorial power,
would not seem to contemplate foreign sovereigns nor their sovereign rights
as its objects. One sovereign being in no respect amenable to another, and
being bound by obligations of the highest character not to degrade the dig-
nity of his nation by placing himself or its sovereign rights within the juris-
diction of another, can be supposed to enter a foreign territory only under
an express license or in the confidence that the immunities belonging to his
independent sovereign station, though not expressly stipulated, are reserved
by implication and will be extended to him.
This perfect equality and absolute independence of sovereigns, and this
common interest impelling them to mutual intercourse and an interchange
of good offices with each other, have given rise to a class of cases in which
every sovereign is understood to waive the exercise of a part of the com-
plete exclusive territorial jurisdiction which has been stated to be the attri-
bute of every nation.
MARSHALL ON NEUTRAL JURISDICTION. 65
First. One of these is admitted to be the exemption of the person of the
sovereign from arrest or detention within a foreign territory. * * *
Second. A second case, standing on the same principles with the first, is
the immunity which all civilized nations allow to foreign ministers. * * *
Third. A third case in which a sovereign is understood to cede a portion
of his territorial jurisdiction is where he allows the troops of a foreign prince
to pass through his dominions. * * *
But the rule which is applicable to armies does not appear to be equally
applicable to ships of war entering the ports of a friendly power. The
injury inseparable from the march of an army through an inhabited country
and the dangers often, indeed generally, attending it do not ensue from
admitting a ship of war without special license into a friendly port. A dif-
ferent rule, therefore, with respect to this species of military force has been
generally adopted. If, for reasons of state, the ports of a nation generally,
or any particular ports, be closed against vessels of war generally or the
vessels of any particular nation, notice is usually given of such determina-
tion. If there be no prohibition the ports of a friendly nation are consid-
ered as open to the public ships of all powers with whom it is at peace, and
they are supposed to enter such ports and to remain in them, while allowed
to remain, under the protection of the government of the place.
In almost every instance the treaties between civilized nations contain
a stipulation to this effect in favor of vessels driven in by stress of weather
or other urgent necessity. In such cases the sovereign is bound by compact
to authorize foreign vessels to enter his ports. The treaty binds him to
allow vessels in distress to find refuge and asylum in his ports, and this is a
license which he is not at liberty to retract. It would be difficult to assign
a reason for withholding from a license thus granted any immunity from
local jurisdiction which would be implied in a special license.
If there be no treaty applicable to the case, and the sovereign, from
motives deemed adequate by himself, permits his ports to remain open to
the public ships of foreign friendly powers, the conclusion seems irresistible
that they enter by his assent; and if they enter by his assent, necessarily
implied, no just reason is perceived by the court for distinguishing their
case from that of vessels which enter by express assent.
In all cases of exemption which have been reviewed much has been
implied, but the obligation of what was implied has been found equal to the
obligation of that which was expressed. Are there reasons for denying the
application of this principle to ships of war?
In this part of the subject a difficulty is to be encountered, the seriousness
of which is acknowledged but which the court will not attempt to evade.
Those treaties which provide for the admission and safe departure of
public vessels entering a port from stress of weather or other urgent cause,
provide in like manner for the private vessels of the nation; and where
public vessels enter a port under the general license which is implied merely
from the absence of a prohibition, they are, it may be urged, in the same
condition with merchant vessels entering the same port for the purposes of
trade, who can not thereby claim any exemption from the jurisdiction of
18239— 05 5
66 SUPPLY SHIP IN NEUTRAL HARBOR.
the country. It may be contended, certainly with much plausibility, if not
correctness, that the same rule and same principle are applicable to public
and private ships; and since it is admitted that private ships entering with-
out special license become subject to the local jurisdiction, it is demanded
on what authority an exception is made in favor of ships of war.
It is by no means conceded that a private vessel, really availing herself of
an asylum provided by treaty, and not attempting to trade, would become
amenable to the local jurisdiction, unless she committed some act of for-
feiting the protection she claims under compact. On the contrary, motives
may be assigned for stipulating and according immunities to vessels in cases
of distress which would not be demanded for or allowed to those which enter
voluntarily and for ordinary purposes. On this part of the subject, how-
ever, the court does not mean to indicate any opinion. The case itself may
possibly occur and ought not to be prejudged.
Without deciding how far such stipulations in favor of distressed vessels,
as are usual in treaties, may exempt private ships from the jurisdiction of
the place, it may safely be asserted that the whole reasoning upon which
such exemption has been implied in other cases applies with full force to the
exemption of ships of war in this.
"It is impossible to conceive," says Vattel, "that a prince who sends an
ambassador or any other minister can have any intention of subjecting him
to the authority of a foreign power: and this consideration furnishes an
additional argument, which completely establishes the independency of a
public minister. If it can not be reasonably presumed that his sovereign
means to subject him to the authority of a prince to whom he is sent, the
latter, in receiving the minister, consents to admit him on the footing of
independency; and thus there exists between the two princes a tacit con-
vention, which gives a new force to the natural obligation."
Equally impossible is it to conceive, whatever may be the construction
as to private ships, that a prince who stipulates a passage for his troops, or
an asylum for his ships of war in distress, should mean to subject his army
or his navy to the jurisdiction of a foreign sovereign. And if this can not
be presumed, the sovereign of the port must be considered as having con-
ceded the privilege to the extent in which it must have been understood to
To the court it appears that where, without treaty, the ports of the
nation are open to the public and private ships of a friendly power, whose
subjects have also liberty without special license, to enter the country for
business or amusement, a clear distinction is to be drawn between the rights
accorded to private individuals or private trading vessels and those accorded
to public armed ships which constitute a part of the military force of the
The preceeding reasoning has maintained the propositions that all exemp-
tions from territorial jurisdictions must be derived from the consent of the
sovereign of the territory; that this consent may be implied or expressed;
and that when implied its extent must be regulated by the nature of the
case and the views under which the parties requiring and conceding it must
be supposed to act.
OPINIONS OF COFRT. 67
After mentioning the treatment of private ships, Mr.
Chief Justice Marshall further says:
But in all respects different is the situation of a public armed ship. She
constitutes a part of the military force of her nation ; acts under the imme-
diate and direct command of her sovereign ; is employed by him in national
objects. He has many and powerful motives for preventing those motives
from being defeated by the interference of a foreign state. Such inter-
ference can not take place without affecting his power and his dignity.
The implied license, therefore, under which such vessel enters a friendly
port may reasonably be construed, and it seems to the court, ought to be
■construed, as containing an exemption from the jurisdiction of the sovereign
within whose territory she claims the rights of hospitality.
Upon these principles, by the unanimous consent of nations, a foreigner
is amenable to the laws of the place : but certainly in practice nations have
not yet asserted their jurisdiction over the public armed ships of a foreign
sovereign entering a port open for their reception. * * *
It seems, then, to the court, to be a principle of public law that national
ships of war entering the port of a friendly power open for their reception
are to be considered as exempted by the consent of that power from its
jurisdiction. (U. S Supreme Court Reports, 7 Cranch, 116, Exchange
Later opinions of the court. — This opinion of Chief
Justice Marshall has been most widely and approvingly
quoted as showing the fundamental grounds for the
exemption of war vessels of one state from the jurisdiction
of another state even when in the ports of the second
The Supreme Court has also frequently referred to this
In a subsequent case (The Santissima Trinidad, 7
Wheaton, 283) the United States Supreme Court says:
In the case of the Exchange (7 Cranch, 116) the grounds of the exemp-
tion of public ships were fully discussed and expounded. It was there
shown that it was not founded upon any notion that a foreign sovereign
had an absolute right, in virtue of his sovereignty, to an exemption of his
property from the local jurisdiction of another sovereign, when it came
within his territory; for that would be to give him sovereign power beyond
the limits of his own empire. But it stands upon principles of public comity
and convenience, and arises from the presumed consent or license of nations,
that foreign public ships coming into their ports, and demeaning themselves
according to law and in a friendly manner, shall be exempt from the local
jurisdiction. But as such consent and license is implied only from the gen-
eral usage of nations, it may be withdrawn upon notice at any time, without
just offense, and if afterwards such public ships come into our ports they
68 SUPPLY SHIP IN NEUTRAL HARBOR.
are amenable to our laws in the same manner as other vessels. To be sure,
a foreign sovereign can not be compelled to appear in our courts, or be made
liable to their judgment . so long as he remains in his own dominions, for the
sovereignty of each is bounded by territorial limits.
If, however, he comes personally within our limits, although he generally
enjoy a personal immunity, he may become liable to judicial process in the
same way and under the same circumstances as the ships of his nation.
But there is nothing in the law of nations which forbids a foreign sovereign,
either on account of the dignity of his station, or the nature of his preroga-
tive, from voluntarily becoming a party to a suit in the tribunals of another
country, or from asserting there any personal, or proprietary, or sovereign
rights, which may be properly recognized and enforced by such tribunals.
It is a mere matter of his own good will and pleasure; and if he happens to
hold a private domain within another territory, it may be that he can not
obtain full redress for any injury to it, except through the instrumentality
of its courts of justice. It may therefore be justly laid down as a general
proposition, that all persons and property within the territorial jurisdiction
of a sovereign are amenable to the jurisdiction of himself or his courts; and
that the exceptions to this rule are such only as by common usage and
public policy have been allowed, in order to preserve the peace and har-
mony of nations and to regulate their intercourse in a manner best suited
to their dignity and rights. It would indeed be strange if a license implied
by law from the general practice of nations, for the purposes of peace, should
be construed as a license to do wrong to the nation itself, and justify the
breach of all those obligations which good faith and friendship, by the same
implication, impose upon those who seek an asylum in our ports. (U. S.
Supreme Court Reports, 7 Wheaton, 283, p. 473.)
Proclamation, 1870. — The proclamation by President
Grant on October 8, 1870, gives a very full statement of
belligerent rights in neutral ports.
By the President of the United States of America.
Regulating the conduct of vessels of war of either belligerent in the waters
within the territorial jurisdiction of the United States.
Whereas on the 22d day of August, 1870, my proclamation was issued,
enjoining neutrality in the present war between France and the North
German Confederation and its allies and declaring, so far as then seemed to
be necessary, the respective rights and obligations of the belligerent parties
and of the citizens of the United States; and
Whereas subsequent information gives reason to apprehend that armed
cruisers of the belligerents may be tempted to abuse the hospitality accorded
to them in the ports, harbors, roadsteads, and other waters of the United
States, by making such waters subservient to the purposes of war:
Now, therefore, I, Ulysses S. Grant, President of the United States of
America, do hereby proclaim and declare that any frequenting and use of
PROCLAMATION OF 1870. 69
the waters within the territorial jurisdiction of the United States by the
armed vessels of either belligerent, whether public ships or privateers, for
the purpose of preparing for hostile operations, or as posts of observation
upon the ships of war or privateers or merchant vessels of the other belliger-
ent lying within or being about to enter the jurisdiction of the United States,
must be regarded as unfriendly and offensive and in violation of that
neutrality which it is the determination of this Government to observe: and
to the end that the hazard and inconvenience of such apprehended practices
may be avoided, I further proclaim and declare that, from and after the 12th
day of October instant, and during the continuance of the present hostilities
between France and the North German Confederation and its allies, no ship
of war or privateer of either belligerent shall be permitted to make use of
any port, harbor, roadstead, or other waters within the jurisdiction of the
United States as a station or place of resort for any warlike purpose, or for
the purpose of obtaining any facilities of warlike equipment: and no ship of
war or privateer of either belligerent shall be permitted to sail out of or leave
any port, harbor, or roadstead or waters subject to the jurisdiction of the
United States from which a vessel of the other belligerent (whether the same
shall be a ship of war, a privateer, or a merchant ship) shall have previously
departed, until after the expiration of at least twenty-four hours from the
departure of such last-mentioned vessel beyond the jurisdiction of the
If any ship of war or privateer of either belligerent shall, after the time
this notification takes effect, enter any port, harbor, roadstead, or waters
of the United States, such vessel shall be required to depart and to put to
sea within twenty-four hours after her entrance into such port, harbor, road-
stead, or waters, except in case of stress of weather or of her requiring pro-
visions or things necessary for the subsistence of her crew, or for repairs;
in either of which cases the authorities of the port or of the nearest port
(as the case may be) shall require her to put to sea as soon as possible after
the expiration of such period of twenty-four hours, without permitting her
to take in supplies beyond what may be necessary for her immediate use;
and no such vessel which may have been permitted to remain within the
waters of the United States for the purpose of repair shall continue within
such port, harbor, roadstead, or waters for a longer period than twenty-four
hours after her necessary repair shall have been completed, unless within
such twenty-four hours a vessel, whether ship of war, privateer, or merchant
ship of the other belligerent, shall have departed therefrom, in which case
the time limited for the departure of such ship of war or privateer shall be
extended so far as may be necessary to secure an interval of not less than
twenty-four hours between such departure, and that of any ship of war,
privateer, or merchant ship of the other belligerent which may have pre-
viously quit the same port, harbor, roadstead, or waters.
No ship of war or privateer of either belligerent shall be detained in any
port, harbor, roadstead, or waters of the United States more than twenty-
four hours, by reason of the successive departures from such port, harbor,
roadstead, or waters, of more than one vessel of the other belligerent. But
if there be several vessels of each or either of the two belligerents in the same
70 3UPPL1 SHIP IX NEUTRAL HARBOR.
port, harbor, roadstead, or waters, the order of their departure therefrom
shall be so arranged as to afford the opportunity of leaving alternately to
the vessels of the respective belligerents, and to cause the least detention
consistent with the objects of this proclamation. No ship of war or priva-
teer of either belligerent shall be permitted, while in any port, harbor, road-
stead, or waters within the jurisdiction of the United States, to take in any
supplies except provisions and such other things as ma}" be requisite for the
subsistence of her crew, and except so much coal only as may be sufficient
to earn- such vessel, if without sail power, to the nearest European port of
her own country: or in case the vessel is rigged to go under sail, and may
also be propelled by steam power, then with half the quantity of coal which
she would be entitled to receive if dependent upon steam alone: and no coal
shall be again supplied to any such ship of war or privateer in the same or
any other port, harbor, roadstead, or waters of the United States, without
special permission, until after the expiration of three months from the time
when such coal may have been last supplied to her within the waters of the
United States, unless such ship of war, or privateer shall, since last thus
supplied, have entered a European port of the government to which she
In testimony whereof I have hereunto set my hand and caused the seal
of the United States to be affixed.
Done at the city of Washington this 8th day of October, in the year of our
Lord 1870, and of the independence of the United States of America the
[seal.] U. S. Grant.
By the President:
Secretary of State.
(Foreign Relations U. S. 1870, p. 48.)
Domestic law. — The position of the Government of the
United States, so far as domestic law is concerned, is set
forth in the following statute:
Sec. 5285. Every person who, within the territory or jurisdiction of the
United States, increases or augments, or procures to be increased or aug-
mented, or knowingly is concerned in increasing or augmenting, the force
of any ship of war, curiser, or other armed vessel which, at the time of her
arrival within the United States, was a ship of war or cruiser or armed
vessel in the service of any foreign prince or state or of any colony, district,
or people, or belonging to the subjects or citizens of any such prince or
state, colony, district, or people, the same being at war with any foreign
prince or state or of any colony, district, or people with whom the United
States are at peace, by adding to the number of the guns of such vessel
or by changing those on board of her for guns of a larger caliber or by add-
ing thereto any equipment solely applicable to war, shall be deemed guilty
of a high misdemeanor and shall be fined not more than one thousand
dollars and be imprisoned not more than one year.
(U. S. Revised Statutes.)
BRITISH PORT REGULATIONS. 71
British regulations. — The British regulations show the
position of a great maritime power toward the control
of the general conduct of war vessels in a foreign port by
the authorities of that port.
Queen's Regulations and Admiralty Instructions, 1899,
provide for Great Britain as follows:
592. Subject to any limit which the neutral authorities may place upon
the number of belligerent cruisers to be admitted to any one of their ports
at the same time, the captain, by the comity of. nations, may enter a neu-
tral port with his ship for the purpose of taking shelter from the enemy or
from the weather or for obtaining provisions or repairs that may be press-
593. He is bound to submit to any regulations which the local authori-
ties may make respecting the place of anchorage, the limitation of the
length of stay in the port, the interval after a hostile cruiser has left the
port before his ship may leave in pursuit, etc.
594. He must abstain from any acts of hostility toward the subjects,
cruisers, vessels, or other property of the enemy which he may find in the
595. He must also abstain from increasing the number of his guns, from
procuring military stores, and from augmenting his crew even by the enroll-
ment of British subjects.
Thus it is seen that the decision of the courts, procla-
mations, domestic laws, and regulations alike agree upon
the growing tendency to prescribe more and more defi-
nitely the exact range of action which may be permitted
to a belligerent war vessel in a neutral port. In no case
is there a doubt that the neutra] state has a right to
make regulations upon this subject. The proclamations
of neutrality issued in recent wars also show a tendency
to become explicit in outlining belligerent rights in neu-
tral ports. This has been particularly the case since the
civil war in the United States and the adjustment of the
Neutrality proclamations. — The neutrality proclama-
tions issued by various governments during the Spanish-
American war of 1898 show the tendency toward specific
restriction of belligerent action so far as it affects neu-
trals. The proclamations issued during the Russo-
Japanese war in 1904 are even more specific in many
instances than those issued in 1898.
fZ SUPPLY SHIP IN NEUTRAL HARBOR.
The British neutrality proclamation of April 23, 1898,
following the treaty of May 8, 1871, provides that—
A neutral government is bound —
Secondly. Not to permit or suffer either belligerent to make use of its
ports or waters as the base of naval operations against the other, or for the
purpose of the renewal or augmentation of military supplies or arms or
the recruitment of men.
The circular letter from the foreign office of February
10, 1904, gives the full and latest statement of the British
position upon this subject:
Rule 3. No ship of war of either belligerent shall hereafter be permitted,
while in any such port, roadstead, or waters subject to the territorial juris-
diction of Her Majesty, to take in any supplies, except provisions and such
other things as may be requisite for the subsistence of her crew, and except
so much coal only as may be sufficient to carry such vessel to the nearest
port of her own country or to some nearer named neutral destination, and
no coal shall again be supplied to any such ship of war in the same or in
any other port, roadstead, or waters subject to the territorial jurisdiction
of Her Majesty, without special permission, until after the expiration of
three months from the time when such coal may have been last supplied
to her within British waters as aforesaid. (The London Gazette Extraor-
dinary, February 11, 1904.)
Articles IX and X of the decree of April 6, 1864, re-
vised in 1895, provided that for Itaiy —
In no case can a belligerent ship make use of an Italian port for purpose
of warfare or to supply itself with arms or ammunition. It can not, under
pretext of repairs, execute works in any way adapted to increase its war-
Nothing shall be supplied to belligerent ships of war or cruisers except-
ing provisions, commodities, and things for repairs simply necessary for
their crews and the safety of their voyage. Such belligerent ships of war
or cruisers as wish to resupply themselves with coal shall not receive that
supply until twenty-four hours after their arrival.
The mercantile marine code of Italy also makes pro-
vision on this matter:
Aet. 248. In no case can a belligerent ship make use of an Italian port
for war purposes or to provision itself with arms or munitions. No work
can be executed under the pretext of repairs which in any way could add
to the fighting strength of the vessel.
The circular letter of the Brazilian ministry of foreign
affairs of April 29, 1898, is even more explicit in its terms
RIGHTS OF VESSELS IN PORT. 73
upon the subject of supplying belligerent vessels in its
ports. Section XIJ of this letter reads:
It will not be permitted to either of the belligerents to receive in the
ports of the Republic goods coming directly for them in the ships of any
This means that the belligerents may not seek ports en route and on
account of an unforeseen necessity while having the intention of remaining
in the vicinity of the coasts of Brazil, taking thus beforehand the necessary
precautions to furnish themselves with the means of continuing their
enterprises. The tolerance of such an abuse would be equivalent to allow-
ing our ports to serve as a base of operation for the belligerents.
The Netherlands proclamation of neutrality in the
Russo-Japanese war, issued in February, 1904, enters
even more into details in prescribing the treatment of
belligerent ships in its port than was the case at the time
of the Spanish- American war of 1898. This may be in
part due to the nearness of some of its colonial possessions
to the seat of hostilities.
Such provisions as the following occur:
Article IV. It is prohibited within the Kingdom to provide ammunition
or arms to war ships or either of the belligerent parties to assist them in
any way toward the increase of their men, arms, or equipment and to the
making of repairs, as also toward the providing of the material or imple-
ments necessary thereto.
The same prohibition is made in regard to every vessel that is evidently
destined for the direct conveyance to a war ship of either of the belligerent
parties of the assistance or goods above mentioned in the first clause.
Article V. It is prohibited without the previous sanction thereto from
the proper authority to afford within the territory of the Kingdom to any
war ship of the belligerent parties provisions or fuel.
Rights of vessels in port. — From various points of view
it is evident that belligerent war vessels in neutral ports
in time of war have, aside from the customary right of
entrance in case of stress of weather or other absolute
necessity, no rights beyond such as the neutral state may
Entrance for purposes having no bearing upon the con-
duct of hostilities is generally conceded to war vessels.
This is, however, in most instances now denied to pri-
vateers and to armed vessels with prizes and to vessels
captured as prize.
74 SUPPLY SHIP IN NEUTRAL HARBOR.
A neutral government must prevent its ports from being used as a base
of operations and supplies by the ships of either belligerent.
In time of war, as in time of peace, public vessels may freely enter a
foreign port in the absence of prohibition by the state to whom the port
belongs. But if a neutral power chooses to close its ports to the public
vessels of both belligerents, the latter can only enter under stress of
weather or in case of absolute necessity. This practice has been already
adopted by many states with reference to one class of belligerent public
vessels, namely, prizes taken from the enemy, and it is possible that, hav-
ing regard to the strict impartiality expected from neutrals, it may be
eventually extended to belligerent public vessels of every kind. The
British regulations of 1862, described below, go far in this direction. At
present, however, the rule is that, in the absence of prohibition, a bel-
ligerent man-of-war may enter a neutral port and make such repairs and
take in such coal and provisions as may be necessary to enable it to navi-
gate safely. Hospitality is lawful, but anything over and above this,
amounting to an augmentation of force, is not. To permit a belligerent
ship of war to receive such an illegal augmentation of force is a breach of
neutrality and vitiates all captures subsequently made by the ship which
has received it. (See La Santissima Trinidad, footnote, p. 197.)
Owing to the very modern development of steam, international law does
not as yet contain an authoritative rule as to the purchase of coal by a
belligerent in neutral ports. During the American civil war Great Britain
allowed ships of war to take in only so much coal in British ports as would
suffice to carry them to the nearest port of their own country, and refused
any second supply to the same vessel, without special permission, until
after the expiration of three months.
These regulations enable a belligerent ship to navigate safely without
adding to its fighting power and prevent it from making the neutral port
a base of operations by coaling there at frequent intervals.
The United States adopted similar regulations during the Franco-
Prussian war, and the usage of the two countries is not unlikely to become
general in the future. (J. S. Risley, Law of War, p. 205.)
Lawrence (Principles' ot International Law, page 503)
The rule of abstention from active hostility in neutral waters or on neu-
tral land has received in comparatively recent times an obvious and reason-
able extension. It is now the duty of belligerents —
To abstain from making on neutral territory direct preparations for acts
Warlike expeditions may not be fitted out within neutral borders, nor
may neutral land or waters be made the base of operations against an
enemy. The fighting forces of a belligerent may not be reinforced or
recruited in neutral territory, and supplies of arms and warlike stores or
other equipments of direct use for war may not be obtained therein. But
these prohibitions do not extend to remote uses and the supplies and equip-
GENERAL STATEMENT AS TO NEUTRAL PORT. 75
ments that are useful for such purposes as sustaining life or carrying on nav-
igation. Provisions may be purchased by belligerent ships lying in neutral
ports, and they may take on board masts, spars, and cordage, and even
undergo repairs, but nothing beyond what is necessary to make them sea-
worthy must be done to them. Any structural changes that increase their
efficiency as instruments of attack and defense are strictly forbidden, as
well as any augmentation of their warlike force.
A neutral state may, if it chooses, restrict the amount of innocent supplies
allowed to belligerent ships who take advantage of the hospitality of its
ports and waters, and a usage is springing up of permitting such vessels to
take on board only a limited quantity of coal. A distinction must, however,
be drawn between prohibitions which depend entirely upon the will of the
neutral and prohibitions which are imposed by international law. The
former can be made or unmade, strengthened or relaxed at pleasure, and
as long as they are reasonable in themselves and applied with absolute
impartiality to both sides in the struggle no power has any reason to com-
plain. The latter are fixed and constant, and if a belligerent ignores them
or a neutral suffers them to be ignored the aggrieved parties, whether neu-
tral or belligerent, can demand reparation and take means to prevent a
repetition of the offense.
We have seen that a belligerent is bound not to use neutral territory as a
base of operations or as a convenient place for the organization of warlike
expeditions which may proceed from thence to attack the enemy or prey
upon his commerce.
But it is impossible to understand the nature and extent of these obliga-
tions without an examination of the exact sense to be attached to the two
phrases, "base of operations" and " warlike expedition." The former is
a technical term of the military art, and was introduced into international
law when the growing sense of state duty rendered it necessary to define
with accuracy the limits of belligerent liberty and neutral forbearance. It
is to be found in the second of the three rules of the treaty of Washington
of 1871, but the Geneva arbitrators did not attempt to explain it in their
award. Hall quotes from Jomini, the great French writer on the art of war,
a definition of a base of operations as a place or station "from which an
army draws its resources and reinforcements, that from which it sets forth
on an offensive expedition, and in which it finds a refuge at need." He
goes on to contend that "continued use is above all things the crucial test
of a base," and it is difficult to resist the arguments in favor of this view,
which applies to a fleet or a single ship as well as to an army or a detachment
of troops. The drawing of supplies once or twice from a given point in the
course of long-continued hostilities will not make it into a base.
The general position may be said to be well established.
With changed conditions, more definite rules are neces-
Even during the American civil war ships of war were only permitted
to be furnished with so much coal in English ports as might be sufficient to
take them to the nearest port of their own country, and were not allowed to
76 SUPPLY SHIP IN NEUTRAL HARBOR.
receive a second supply in the same or any other port, without special per-
mission, until after the expiration of three months from the date of receiving
such coal. The regulations of the United States in 1870 were similar, no
second supply being permitted for three months unless the vessel requesting
it had put into a European port in the interval.
There can be little doubt that no neutral states would now venture to
fall below this measure of care; and there can be as little doubt that their
conduct will be as right as it will be prudent. When vessels were at the
mercy of the winds it was not possible to measure with accuracy the supplies
which might be furnished to them, and as blockades were seldom contin-
uously effective, and the nations which carried on distant naval operations
were all provided with colonies, questions could hardly spring from the use
of foreign possessions as a source of supplies. Under the altered conditions
of warfare matters are changed. When supplies can be meted out in
accordance with the necessities of the case, to permit more to be obtained
than can, in a reasonably liberal sense of the word, be called necessary for
reaching a place of safety is to provide the belligerent with means of aggres-
sive action, and consequently to violate the essential principles of neutral-
ity. (Hall, International Law, 5th ed., p. 106.)
Woolsey says :
The same spirit of humanity, as well as respect for a friendly power,
imposes on neutrals the duty of opening their ports to armed vessels of both
belligerents for purposes having no direct relation to the war and equally
likely to exist in the time of peace. Cruisers may sail into neutral harbors
for any of the purposes for which merchant vessels of either party frequent
the same places, except that merchant vessels are suffered to take military
stores on board, which is forbidden generally, and ought to be forbidden, to
ships of war. (International Law, section 167.)
Conclusions. — The rapid changes in the means and
methods of conducting maritime hostilities has made
necessary the development of new regulations in regard
to the treatment of belligerent vessels in neutral ports.
These regulations will naturally change with further
development in means and methods of warfare.
It may be safely said that belligerent vessels in neutral
ports in time of war can scarcely be said to have rights,
but only such privileges as the neutral state may grant,
which are generally of entrance for purposes which are
not warlike in character, in intent, or in effect.
In other words, the neutral state must maintain its
neutrality, even though it grants belligerent war vessels
certain privileges within its ports.
Kleen clearly presents the case:
FITTING OUT HOSTILE EXPEDITION. 77
11 appartient a tout Etat sou ve rain de decider lui-meme dans quelle
mesure il veut permettre aux etrangers Fusage de ses ports et rades, comme
de ses eaux territoriales en general; et ce droit de decision est independant
du but et de la nature de Pemploi. Juridiquement, un navire de guerre ne
peut pas exiger plus d'hospitalite pour ses visites d'exercice, qu'un navire
de commerce pour son trafic, un pleasure-yacht pour ses excursions. La
seule priorite juridique des navires de guerre consiste dans leur extemtori-
alite, Faeces une fois admis. Mais quant a Faeces lui-meme, ils n'y ont pas
plus de droit que d'autres navires; et ils sont soumis, autant que ceux-ci,
au devoir d'obL'ir a l'ordre present par le souverain et les autorites des
Un etat de guerre n'apporte en general a F application de cette regie pas
d'autres modifications que celles qui decoulent des devoirs d'un Etat neutre,
particulierement de son devoir de faire valoir son inviolabilite territoriale
contre les abus eventuels de Fhospitalite commis par les belligerants en vue
de renforts ou d'autres buts de guerre, et de proteger contre toute hostilite
tant les belligerants eux-memes que d'autres etrangers admis soit a l'asile
soit a Faeces simple, l'experience ayant demontre combien la presence de
navires de guerre des belligerents en port neutre peut devenir dangereuse
a ces deux egards. Mais, a ces restrictions apport'^es par le devoir, pour
garantir la neutralite de FEtat et les droits de chacun, le souverain du ter-
ritoire est naturellement libre d'ajouter les ordoimances qu'il lui plait et
qu'il trouvc convenables, pour sauvegarder l'ordre chez lui, en considerant,
par exemple, sa situation geographique, les circonstances specialement
difficiles, des interets particuliers etc., — bien entendu sans favoriser ou
d^favoriser Fune des parties bellig.'rantes comme telle plus que Fautre.
(La Neutralite, I, p. 530.)
Halleck's International Law, Baker's ed., II, p. 166,
Moreover, the extent of a nation's sovereign rights depends, in some
measure, upon its municipal laws, and other powers are bound not only to
abstain from violating such laws, but to respect the policy of them. The
municipal laws of a state for the protection of the integrity of its soil and
the sanctity of its neutrality are sometimes more stringent than the general
laws of war. The right of a sovereign state to impose such restrictions and
prohibitions, consistent with the general policy of neutrality, as it may see
fit is undeniable. And all acts of the officers of a belligerent power against
the municipal law of a neutral state or in violation of its policy involve that
government in responsibility for their conduct.
In the situation as proposed, State Y, a neutral, has
protested against the taking of coal, oil, etc., by a war
vessel of the United States, a belligerent, from one of
its supply vessels lying in the neutral port of State Y.
State Y claims that to permit such an act would be equiv-
alent to allowing the port to be used as a place for
fitting out a hostile expedition.
78 SUPPLY SHIP IN NEUTRAL HARBOR.
From the nature of the supply ship, a United States
vessel, State Y would not care to exercise any jurisdic-
tion over it beyond the ordinary port jurisdiction.
The intent of the sending of such a vessel is with a
view of fitting out the war vessel for more effective and
extended service. Naturally, as the neutral state
could not determine the amount or kind of supplies
which the war vessel might take from the supply ship,
it could not guard its neutrality. To allow this action
to proceed would be much like transforming its port
into a coaling station, at which the war vessel might
take on supplies even with more safety than at one of
its own ports, as it would be under the protection of the
neutrality of the port and not liable to attack from the
enemy. Such a transfer of supplies would not be a
commercial transaction, but an actual part of the military
operations of the United States.
To permit such action would be equivalent to allowing
the port to be used as a base for military operations.
The neutrality regulations of Brazil in 1898 distinctly
stated, "It will not be permitted to either of the bel-
ligerents to receive in the ports of the Republic goods
coming directly for them in the ships of any nation
This position of Brazil goes a step further than the
case under consideration, as this involves receiving
supplies from a United States supply ship, while the
Brazilian regulation forbids such action in case of " ships
of any nation whatever.''
(a) The protest of State Y is valid and fully justified;
indeed to maintain her neutrality State Y must use due
diligence to prevent such action.
(b) Owing to the reasons as set forth already, the
commander must conform to the just demands of the
authorities of State Y.
(c) The onhy difference in case there was a fleet of
war vessels with supply ships in the port would be one
of degree. The evidence of an intent to use the port
ot Y as a base for hostile operations would be more clear
even, and the duty of State Y would be more plain.
While war exists between the United States and State
X a number of the war vessels of State X are pursued
by a United States fleet and seek refuge in a port of
State Y, a neutral. The commander of the United
States fleet, after waiting outside the port for twenty-
four hours, protests to the authorities 01 State Y, claim-
ing that as the vessels of the enemy have entered the
neutral port to escape his fleet they may not justly be
(a) Is the position taken by the United States com-
(b) What should the authorities of State Y do ?
'(a) The United States commander would be justified
in requesting that belligerent vessels entering and
remaining in the neutral port solely in order to escape
capture by his fleet be interned for the remaining period
of the war.
(b) The authorities of State Y would be acting in
accord with the best opinion in granting his request.
NOTES ON SITUATION V.
The twenty-four hour rule. — (a) The commander of
the United States fleet waits twenty-four hours before
entering his protest, probably on the ground that a
belligerent war vessel is usually allowed twenty-four
hours sojourn in a neutral port.
Upon this practice, however, there is considerable
difference of opinion, some writers considering it to
have the force of law, others regarding it as in effect only
when so proclaimed.
Text writers' opinions. — Risley, discussing sojourn of a
belligerent ship in a neutral port, says:
There is on principle no reason for limiting the stay of a belligerent
ship in a neutral port, provided of course that she receives no augmenta-
80 REFUGE AND INTERNMENT.
tion of force there; but in the event of a ship belonging to the other bel-
ligerent appearing at the same port, restrictions become necessaiy in order
to prevent a collision in neutral waters.
In 1759 Spain laid down the rule that the first of two vessels of war
belonging to different belligerents to leave one of her ports should not
be followed by the other until the expiration of twenty-four hours. At
first this rule was only imposed upon privateers, the word of a captain
of a ship of war that he would not commit hostilities being sufficient ; but
it has now been extended to all ships of war by most of the great states,
including Great Britain, France, and the United States.
The "twenty-four hours rule," as it is called, is not, however, sufficient
of itself to prevent abuse of neutral ports. In 1861 the United States ship
Tuscarora took advantage of the rule to practically blockade the Confed-
erate cruiser XashriUe in Southampton Water. The Tuscarora contrived
always to start before the Nashrille, when the latter attempted to sail,
and returned before the twenty-four hours — during which the Nashville
had to stay behind — had expired. A similar case occurred during 1862
at Gibraltar, where the Confederate ship Sumter was practically blockaded,
at first by the Tuscarora, and afterwards by the Ino and Kearsarge. This
blockade was terminated by the sale of the Sumter to a British subject,
and her subsequent escape to England. She was ultimately wrecked in
attempting to run the blockade of Charleston. Accordingly, in 1862
Great Britain laid down the rule that war vessels of either belligerent
must not remain in British ports for more than twenty-four hours, except
under stress of weather, or in order to effect necessary repairs, in either
of which cases the ship must put to sea as soon as possible after the expira-
tion of the twenty-four hours.
During the Franco-Prussian war this rule was again adopted by Great
Britain, and also by the United States, and, taken in conjunction with the
old "twenty-four hours rule," seems likely to be accepted in the future
for the regulation of the hospitality accorded to belligerent cruisers in
neutral ports. But it can never be a hard-and-fast rule of International
Law, because, as Hall well observes, "the right of the neutral to vary his
own port regulations can never be ousted. The rule can never be more
than one to the enforcement of which a belligerent may trust in the absence
of notice to the contrary." (J. S. Risley, The Law of War, p. 206.)
Lawrence gives considerable attention to the subject
but does not regard the rule as fixed :
We will consider next the duty of belligerent states to obey all reasonable
regulations made by neutral states for the protection of their neutrality.
This duty relates chiefly, though not exclusively, to maritime affairs.
The land forces of the combatants are not permitted to enter neutral
territory, but unless a neutral expressly forbids the entry of belligerent
war ships, they may freely enjoy the hospitality of its ports and waters.
Permission is assumed in the absence of any notice to the contrary, but
nevertheless it is a privilege based upon the consent of the neutral, and
therefore capable of being accompanied by any conditions he chooses to
TWENTY-FOUR HOUR RULE. 81
impose. Belligerent commanders can demand that they shall not be asked
to submit to unjust and unreasonable restraints, and that whatever rules
are made shall be enforced impartially on both sides. But further they
can not go. Where they enter on sufferance they must respect the wishes
of those who permit their presence. Only when their vessels are driven
by stress of weather, or otherwise reduced to an unseaworthy condition,
can they demand admission as a matter of strict law. Their right to
shelter under such circumstances is called the right of asylum, and it
can not be refused by a neutral without a breach of international duty.
In recent times neutral states have acted upon their right of imposing
conditions upon belligerent vessels visiting their ports. The twenty-four
hour rule is the oldest and the most common. It lays down that when
war vessels of opposing belligerents are in a neutral ports at the same time,
or when war vessels of one side and merchant vessels of the other are in
the like predicament, at least twenty-four hours shall elapse between the
departure of those who leave first and the departure of their opponents.
The object of this injunction is to prevent the occurrence of any fighting,
either in the waters of the neutral or so close to them as to be dangerous
to vessels frequenting them. Sometimes the word of the commanders
that they will not commence hostilities in or near neutral territorial waters
has been accepted as sufficient. Greater precautions were generally taken
for the restraint of privateers; but the practical abolition of privateering
by the Declaration of Paris has made obsolete the distinction between two
classes of belligerent cruisers. The possibility of evading the twenty-four
hours rule was shown by the conduct of the United States steamer Tus-
carora at Southampton in December, 1861, and January, 1862. The
southern cruiser Nashville was undergoing repairs in the harbor, and
by keeping steam up, claiming to precede her whenever she attempted to
depart, and then returning within a day, the Tuscarora really blockaded
her in a British port. In the end a British ship of war, exercising a right
which a neutral possesses in extreme cases, escorted the Nashville past the
Tuscarora and out to sea, while the latter was forbidden to leave the port
for twenty-four hours. This and other circumstances caused the British
Government to issue, on January 31, 1862, a series of neutrality regula-
tions more stringent than any hitherto published. They provided that no
ship of war of either belligerent should be permitted to leave a British port
from which a ship of war or merchant vessel of the other belligerent had
previously departed, until after the expiration of at least twenty-four hours
from the departure of the latter. They laid down further that war vessels
of either belligerent should be required to depart within twenty-four hours
of their entry, unless they needed more time for taking in innocent supplies
or effecting lawful repairs, in which case they were to obtain special permis-
sion to remain for a longer period, and were to put to sea within twenty-
four hours after the reason for their remaining ceased. They might freely
purchase provisions and other things necessary for the subsistence of their
crews; but the amount of coal they were allowed to receive was limited to
as much as was necessary to take them to the nearest port of their country.
82 REFUGE AND INTERNMENT.
Moreover, no two supplies of coal were to be obtained in British waters
within three months of each other. These restrictions upon the liberty of
belligerent vessels in British ports have been reimposed in subsequent wars.
The United States adopted them in 1S70 at the outbreak of the conflict be-
tween France and German}', and other powers have copied them wholly or
in part. In fact, they have become so common that they are sometimes
regarded as rules of International Law. This is especially the case with
regard to the supply of coal. It is often said that a neutral state is bound
to allow belligerent cruisers to take on board no more than is sufficient to
carry them to the nearest port of their own country. Such an obligation
is unknown to the law of nations, which arms neutrality with authority to
impose what restraint they deem necessary, but does not condemn them if
they impose none. (Lawrence, Principles of International Law, p. 509.)
Hall regards the twenty-lour rule as " practically sure
to be enforced in every war:"
Marine warfare so far differs from warfare on land that the forces of a
belligerent may enter neutral territory without being under stress from
their enemy. Partly as a consequence of the habit of freely admitting
foreign public ships of war belonging to friendly powers to the ports of a
state as a matter of courtesy, partly because of the inevitable conditions
of navigation, it is not the custom to apply the same rigdr of precaution
to naval as to military forces. A vessel of war may enter and stay in a
neutral harbor without special reasons; she is not disarmed on taking refuge
after defeat; she may obtain such repair as will enable her to continue her
voyage in safety; she may take in such provisions as the needs; and if a
steamer, she may fill up with enough coal to enable her to reach the nearest
port of her own country; nor is there anything to prevent her from enjoy-
ing the security of neutral waters for so long as may seem good to her. To
disable a vessel, or to render her permanently immovable, is to assist her
enemy; to put her in a condition to undertake offensive operations is to
aid her country in its war. The principle is obvious; its application is sus-
ceptible of much variation; and in the treatment of ships, as in all other
matters in which the neutral holds his delicate scale between two belliger-
ents, a tendency toward the enforcement of a harsher rule becomes more
defined with each successive war.
It is easy to fix the proper means of repairs; difficulties short of such
circumstances as those which have already been discussed may sometimes
occur with reference to supplies of coal or provisions; but if a belligerent
can leave a port at his will, the neutral territory may become at any time a
mere trap for an enemy of inferior strength. According^, during a consid-
erable period, though not very generally or continuously, neutral states
have taken more or less precaution against the danger of their waters being
so used. Perhaps the usual custom until lately may be stated as having
been that the commander of a vessel of war was required to give his word
not to commit hostilities against any vessel issuing from a neutral shortly
before him, and that a privateer as being less responsible person, was sub-
jected to detention for twenty-four hours. The disfavor however, with
TWENTY-FOUR HOUR RULE. 83
which privateers have long been regarded has not infrequently led to their
entire exclusion, save in cases of danger from the sea or of absolute neces-
sity; and the twenty-four hours rule has been extended to public ships of
war by Italy, France, England, the United States, and Holland. Probably
it may now be looked upon as a regulation which is practically sure to be
enforced in every war. (Hall, International Law, 5th ed., p. 626.)
Hall also points out that the earlier view of the twenty-
four hour rule was not sufficient to cover the cases which
may easily arise, and that a limit to the time of sojourn
should be made more definite. This position taken by
Hall is emphasized by the differentiation in modern war
vessels in respect to speed and seaworthiness.
On the general subject of the twenty-four hour rule
It will probably be found necessary to supplement the twenty-four hours
rule by imposing some limit to the time during which belligerent vessels
may remain in a neutral port when not actually receiving repairs. The
insufficiency of the twenty-four hours rule, taken by itself, is illustrated by
an incident which occurred during the American civil war. In the end of
1861, the United States corvette Tuscarora arrived in Southampton
waters with the object, as it ultimately appeared, of preventing the exit of
the Confederate cruiser Nashville, which was then in dock. By keeping up
steam and having slips on her cable, so that the moment the Nashville
moved the Tvscarora could precede her, and claim priority of sailing, by
moving and returning again within twenty-four hours and by notifying
and then postponing her own departure, the latter vessel attemoted and for
some time was able to blockade the Nashville within British waters.
In order to guard against the repetition of such acts, it was ordered in
the following January that during the continuance of hostilities any
vessel of war of either belligerent entering an English port "should be
required to depart and to put to sea within twenty-four hours after her
entrance into such port, except in case of stress of weather, or of her requir-
ing provisions or things necessary for the subsistence of her crew, or repairs ;"
in either of which cases the authorities of the port were ordered "to require
her to put to sea as soon as possible after the expiration of such period of
twenty-four hours." In 1870 [and in 1898] the same rule was laid down;
and the United States, unwilling to allow the others the license which she
permitted to herself, adopted an identical resolution. It. is perhaps not
unlikely soon to become general. (Hall, International Law, 5th ed.,
With these opinions continental writers in the main
concur, some asserting it even more strongly than the
British writers cited.
It is evident that while the twenty-four hour rule can
not be held to be obligatory upon a neutral at the present
84 REFUGE AND INTERNMENT.
time in the absence of the neutral's own declaration to
that effect, it is nevertheless in a high degree incumbent
upon a neutral State to enforce the rule.
The technical correctness of the action of the com-
mander in waiting twenty-four hours may be admitted,
provided that it is granted that belligerent vessels may
seek a neutral port in order to escape capture or defeat
at the hands of the enemy.
Twenty-four hour rule in 'proclamations. — The procla-
mations of neutrality of the various States at the time of
the Spanish-American war show the current of opinion.
The regulation of Great Britain, which in spirit serves
as a model to a large number of others, is as follows upon
Rule 2. If there is now in any such port, roadstead, or waters subject
to the territorial jurisdiction of the British Crown any ship of war of either
belligerent, such ship of war shall leave such port, roadstead, or waters
within such time (not less than twenty-four hours) as shall be reasonable,
having regard to all the circumstances and the condition of such ship as to
repairs, provisions, or things necessary for the subsistence of her crew; and
if after the date hereof any ship of war of either belligerent shall enter any
such port, roadstead, or waters subject to the territorial jurisdiction of the
British Crown, such ship shall depart and put to sea within twenty-four
hours after her entrance into any such port, roadstead, or waters, except in
case of stress of weather, or of her requiring provisions or things necessary
for the subsistence of her crew, or repairs, in either of which cases the
authorities of the port, or of the nearest port (as the case may be), shall
require her to put to sea as soon as possible after the expiration of such
period of twent}*-four hours, without permitting her to take in supplies
beyond what may be nesessary for her immediate use ; and no such vessel
which may have been allowed to remain within British waters for the
purpose of repair shall continue in any such port, roadstead, or waters for
a longer period than twenty-four hours after her necessary repairs shall
have been completed. Provided, nevertheless, that in all cases in which
there shall be any vessels (whether ships of war or merchant ships) of both
the said belligerent parties in the same port, roadstead, or waters within
the territorial jurisdiction of Her Majesty, there shall be an interval of not
less than twenty-four hours between the departure therefrom of any such
vessel (whether a ship of war or merchant ship) of the one belligerent, and
the subsequent departure therefrom of any ship of war of the other bel-
ligerent; and the time hereby limited for the departure of such ships of
war respectively shall always, in case of necessity, be extended so far as may
be requisite for giving effect to this proviso, but no further or otherwise.
TWENTY-FOUR HOUR RULE IN PROCLAMATIONS. 85
(The same communication is sent by Lord Lansdowne
to the Lords Commissioners of the Admiralty, etc.,
February 10, 1904.)
The British regulation would make it obligatory for a
belligerent vessel to depart at the end of the twenty-
four hour period, unless, on account of necessary repairs,
provisions, stress of weather, or presence in port of a ship
of the tfther belligerent.
The colonial regulations are in some instances more
China in the main follows Great Britain, though requir-
ing the officials in charge of the port to compel the vessel
to leave at the expiration of the period.
(2) After issuance of this proclamation, should any war ship of either
belligerent come into a Chinese port, except on account of heavy winds or
storms, or to obtain food for crews or for repairs, it must not remain over
twenty-four hours, and the officials in charge of the port or waterway must,
at the end of twenty-four hours, compel said boat to leave, and must not per-
mit the loading of more provisions than are actually needed by the crew.
In case of repairs, the ship must leave within twenty-four hours after
repairs are completed. No delay must be premitted. War or merchant
ships, of whichever nation, in a Chinese port, must be separated in leaving
by twenty-four hours' time, and must not leave before or remain longer
than said time.
The proclamation of Japan is more general, as is the
Netherlands proclamation and the Dutch West Indies
2. No man-of-war or other ship belonging to one or the other of the
belligerent powers shall be permitted to commit any act of war or visit,
search, or capture merchantmen within the territorial waters of the Empire.
Neither shall such man-of-war or such other ship be allowed to make use
of any portion of the territorial waters of the Empire as the basis or head-
quarters of naval operations or for any warlike purposes whatever.
3. The men-of-war and other ships used for warlike purposes, belonging to
one or the other of the belligerent powers, may enter any of the ports that
are open to ships for ordinary purposes of navigation, but should not stay
in the waters of such port longer than twenty-four hours. In case when
such men-of-war or such other ships used for warlike purposes have been
compelled to seek the waters of such port on account of unavoidable cir-
cumstances, such as stress of weather, destitution of articles necessary for
86 REFUGE AND INTERNMENT.
navigation, or disablement, and are unable to quit the port within twenty-
four hours, they should leave the territorial waters of the Empire as soon
as such circumstance or circumstances shall have ceased to exist.
Article I. The vessels and ships of war of the parties at war shall be
admitted to the Kingdom's sea channels, mentioned in article 1 of the
royal order of February 2, 1893 (Official Gazette, No. 46), with due observ-
ance of the further provisions of that order, for a sojourn not exceeding
twenty-four hours, unless it is absolutely necessary that a longer sojourn
be granted them, either for the procuring of provender or coal or in case
of distress or dangers of the sea.
DUTCH WEST INDIES.
Article I. Ships and vessels of war of the belligerents will be admitted
to the harbors and roadsteads of the colony for a stay of twenty-four hours
at most, unless it is shown to be necessary to grant them a longer stay to
enable them to provide themselves with provisions or coal, or in cases of
distress or in dangers of the sea. In such cases, however, they must depart
as soon as they have finished taking in provisions or coal, within the first
twenty-four hours, if possible; otherwise, as quickly as practicable, as soon
as the danger is past , and in the case of repairs within twenty-four hours
at the furthest after the repairs have been finished. The period of twenty-
four hours at the utmost fixed for the stay in port shall be exceeded only
when necessary to the execution of the provisions of article 5 of this pub-
lication. Such quantity of provisions may be taken on board as is suffi-
cient for the subsistence of the crew, but the supply of coal must not be
more than sufficient to enable the ship or vessel to reach the nearest port
of the country to which it belongs or that of one of its allies in the war.
The same vessel shall not be supplied a second time with coal until at least
three months have elapsed since the former supply, unless special per-
mission be granted to that effect.
The Italian regulation is concise and definite.
Art. VII. No belligerent ship of war or cruiser can remain more than
twenty-four hours in a port or roadstead, or on the coasts of the Kingdom,
or in the adjacent waters, even when it comes there alone, except in case
of arrival under stress on account of bad weather, of damages, or want of
the necessary provisions for the safety of the voyage.
For Russia a longer delay than twenty-four hours
requires special Imperial authorization.
The Imperial Government further declares that the ships of war of two
belligerent powers may only enter Russian ports for twenty-four hours.
In case of stress of weather, absence of goods or provisions necessary to
UNMANNED VE88EL IN NEUTRAL PORT. 87
the maintenance of the crew, or for indispensable repairs, the prolongation
of the above-mentioned time can only be accorded by special authoriza-
tion of the Imperial Government.
The proclamation of Brazil, one of the fullest in its
provisions, makes definite reference to the refuge from
No war ship or privateer shall be permitted to enter and remain with
prizes in our ports or bays during more than twenty-four hours, except
in case of a forced putting into port, and in no manner shall it be permitted
to it to dispose of its prizes or of articles coming out of them.
By the words "except in case of a forced putting into port" should also
be understood that a ship shall not be required to leave port within the
said time :
First. If it shall not have been able to make the preparations indis-
pensable to enable it to go to sea without risk of being lost.
Second. If there should be the same risk on account of bad weather.
Third, and finally, if it shall be menaced by an enemy.
In these cases it shall be for the Government, at its discretion, to deter-
mine, in view of the circumstances, the time within which the ship should
Conclusion. — It may be said in regard to the protest
of the commander that he is in the main justified in
making a protest against a sojourn of longer than twenty-
four hours on the part of the war vessel of State X unless
the sojourn be on the grounds of special necessity and
not for military reasons. In this position the opinions of
writers and the general drift of neutrality proclamations
Internment. — (b) The question next arising is in regard
to the proper course of action of State Y, a neutral, in
view of the fact that the belligerent vessels of State X
have sought her port to escape the capture by the vessels
of the United States.
Land forces thus entering neutral territory are interned
for the remainder of the war. Some maintain that the
same course should be pursued in regard to maritime
Unmanned vessel in neutral port. — The completed tor-
pedo boat Somers belonging to the United States was
not allowed to leave the British port for military pur-
poses during the Spanish war. The dispatches concern-
iug this boat show that the boat was practically interned.
88 REFUGE AND INTERNMENT.
Mr. Hay to Mr. Whin.
Department of State,
Washington, November 19, 1898.
Sir: In view of a letter from the Secretary of the Navy, dated the 15th
instant, you are instructed to make, if practicable, arrangements with the
British Government permitting the bringing to the United States of the
torpedo boat Somers, now stored at Falmouth, England, giving assurance
that in case of the resumption of hostilities with Spain this vessel will not
be made use of.
I am. etc., John Hay.
Mr. White to Mr. Hay.
London, December 10, 1898.
Sir: Referring to your instruction 959, of the 19th ultimo, I have the
honor to inform you that upon the day of its receipt I called at the foreign
office and had an interview with Mr. Assistant Under Secretary Villiers,
through whom I requested Her Majesty's Government to allow the torpedo
boat Somers to leave Falmouth, on the understanding that in the event
of a renewal of hostilities between ourselves and Spain she should not be
made use of.
I subsequently addressed a note, of which I inclose a copy, to the Marquis
of Salisbury on the subject, and you will observe from his lordship's reply,
which is also transmitted herewith, that our request has been granted.
I yesterday communicated this fact to you by a telegram, whereof I
inclose a copy.
I have. etc.. Henry- White.
Mr. White to Lord Salisbury.
London, December 1 , 1898.
My Lord: I have the honor, in accordance with instructions from the
Secretary of State, to invite the good offices of your lordship with a view
to obtaining the consent of Her Majesty's Government to the departure
from Falmouth, where she has been stored since the outbreak of the war,
of the United States torpedo boat Somers.
I am instructed, in making this request, to give assurance to your lord-
ship, in behalf of my Government, -that in case hostilities should unfor-
tunately be resumed with Spain, which would now appear to be highly
improbable, the Somers will not be made use of, and I venture to hope
that, upon this understanding. Her Majesty's Government may see their
way to allow her to leave for the United States.
I have, etc., Henry ^YHTTE.
ASYLUM FROM PURSUIT. 89
Lord Salisbury to Mr. White.
Foreign Office, December 8, 1898.
Sir: I have the honor to acknowledge the receipt of your note of the
1st instant, in which you invite my good offices with a view of obtaining
the consent of Her Majesty's Government to the departure from Falmouth,
where she has been stored since the outbreak of the war, of the United States
torpedo boat Somers. You add that you are instructed by the United
States Government to give an assurance that in the event of hostilities
being resumed with Spain, which would now appear to be highly improb-
able, the Somers will not be made use of.
In view of this assurance I have the honor to state that Her Majesty's
Government are glad to comply with your request, and that the necessary
instructions will at OHce be sent to the proper authorities in order to facili-
tate the departure of the vessel.
I have, etc., F. H. Villiers,
(For the Marquis of Salisbury. )
(United States Foreign Relations, 1898, p. 1006.)
Asylum to vessels pursued by enemy. — Galiani (Dei
doveri dei principi neutrali, I, cap. X, §4) maintains that
asylum can be afforded to a ship pursued into neutral
waters by an enemy only on condition that it* practically
be interned for the remainder of the war.
Gessner opposes this position of Galiani (Le Droit des
neutres, p. 78). Perels follows Gessner, maintaining that
even in a case where entrance to neutral waters is for-
bidden to a belligerent ship the position of Galiani is not
justifiable, because the prohibition ought to hold only
against voluntary and not against forced entrance.
(Seerecht, section 39, II, a.)
Fiore (Droit International, III, p. 476) maintains that
it seems that there should be a difference made between
ships of war of the belligerents which are forced by the
elements to make an entrance and those which seek the
port as a refuge to escape pursuit by a victorious enemy
about to capture or to sink them. In the first case, ac-
cording to the usages of international law, the neutral
state ought not to disarm the ship nor to prevent it from
again taking part in the hostilities; but the second case
is altogether exceptional, since the victor may be de-
prived of his prey through the protection afforded. This
is without question an act of humanity, but if the bel-
ligerent can not continue his attack upon his opponent
90 REFUGE AND INTERNMENT.
in territorial waters, he should not be allowed to obtain
safety and after making repairs to return to the combat.
The refugee would thus obtain the protection of the neu-
tral not only to escape the superior victorious force, but
also to put himself again in condition for battle. Fol-
lowing this line of reasoning, Fiore concludes that the
duties of humanity should be reconciled with the exigen-
cies of war by preventing the belligerent ship from taking
further part in the war, by retaining it in port, after
disarming, or by allowing it to depart only after obtain-
ing the word of the commander not to take any part
during the remainder of the war.
The question of asylum to belligerent vessels in time
of war in neutral ports was fully considered by the Insti-
tute of International Law in 1898. The report of the
Institute recognized the difference between forces upon
the sea and those upon land, due to natural conditions,
which made it impossible to obtain supplies, fuel, repairs,
etc., with the same facility as upon land, and also recog-
nized the special dangers from the natural elements, as
from stress of weather. The Institute in its discussions
recognized the propriety of admitting belligerent vessels
to neutral ports in time of war upon such grounds as
might be regarded broadly as grounds of humanity. An
admission to neutral ports under such conditions, for such
specific purposes, limiting supplies, etc., to those abso-
lutely necessary, and the duration of sojourn to period
likewise absolutely necessary, would be no violation of
neutrality, nor would it make the neutral port a base of
military operations. It was held that such action of the
neutral was not military in its nature and did not neces-
sarily affect the issue of the conflict or modify the rela-
tions of the belligerent.
On the other hand, the admission to a neutral port of
a .belligerent ship pursued by its opponent and unable or
even unwilling to meet its pursuer is to put the pursued
ship beyond the reach of the other belligerent even more
effectively than might have been the case had she entered
one of her home ports. Such action may directly influ-
OPINION OF INSTITUTE OF INTERNATIONAL LAW. 91
ence the issue of the war. Yet, in the first place it is
admittedly impossible for the neutral in every instance to
prevent the entrance of a vessel thus pursued, and in the
second place the neutral may not allow any combat
within neutral jurisdiction.
If the neutral allows the belligerent vessel fleeing from
its opponent to find refuge in its neutral'port for a time
and then to go forth to meet the enemy, the neutral in
effect makes the port a base of operations. The fleeing
belligerent may in many instances within the twenty-four
hour period summon and receive such reenf orcement that
when she again goes forth she may join with other of the
forces of State X sufficient to secure her own safety or to
threaten the force of the United States. In many other
ways the twenty-four hour sojourn may be a decided or
even a decisive military advantage. It is evident in this
situation that the vessel of State X entered the port of
Y from overwhelming military reasons. The vessel en-
tered to escape capture or destruction by the enemy.
To afford shelter under such circumstances and to allow
the vessel to again set forth from the neutral port upon a
military expedition is to act as an ally of State X.
In order that the neutral may not violate neutrality
and in order that the pursuing belligerent may not be
deprived of some of the rewards of his effort to place his
enemy beyond the power of further contest, there seems
to be a single line of approved conduct, viz, to intern the
belligerent vessel coming within neutral jurisdiction in
order to escape capture by a pursuing enemy.
Kleen, in La Neutrality, 1898, Volume I, on page 533,
says : .
Done, un naivre de guerre fuyant devant Pennemi et refugie dans un port
neutre, y est traite a Pinstar des fuyards de la guerre continental , e'est-a-
dire desarme et interne apres avoir joui des soins humanitaires ; tandis
qu'au contraire, le naivre entre en disette ou detresse proprement dite peut
et doit quitter le port et mettre au large aussitot qu'il est hors de danger.
Opinion of the Institute o] International Law. — Kleen was
also instrumental in drawing up the rules adopted by the
92 REFUGE AND INTERNMENT.
Institute of International Law in 1898. These were
unanimously adopted, as follows:
i Annuaire del' Tnstitut de Droit International, XVII, 1898, Ses$io)> de la
ffaye, i hi, i, 886 J)
Art. 42 La concession d'asile auz belligerants dans les ports neutres, tout
en dependant de la decision de l'Etat souverain du port et ne pouvant §tre
cxigee. est presunu'e, a moins de notification contraire prealablement com-
Toutefois, quant aux navires de guerre, elle doit etre hmitee aux cas de
veritable detresse, par suite de: (1°) Defaite, maladie ou equipage insufn-
sant, (2°) peril de mer, (3°) manque des moyens d'existence ou de loco-
motion (eau, charbon, vivres), (4°) besoin de reparation.
Un navire belligerant se refugiant dans un port neutredevant la poursuite
de l'ennemi,ou apres avoir ete defait par lui, ou faute d'equipage pour tenir
la mer, doit y roster jusqu'a la fin de la guerre. II en est de meme s'il y
transporte des malades ou des blesses, et qu 'apres les avoir debarques, il
soit en etat de combattre. Les malades et les blesses, tout en etant re^us
et secourus, sont, apres guerison, internes egalement, a moins d'etre recon-
nus impropres au service militaire.
Un refuge contre un peril de mer n'est donne aux navires de guerre des
belligerants que pour la duree du danger. On ne leur fournit de l'eau, du
charbon, des vivres et autres approvisionnements analogues qu'en la quan-
tity necessaire pour atteindre le port national le plus proche. Les repara-
tions ne sont permis que dans la mesure necessaire pour que le batiment
puisse tenir la mer. Immediatement apres, le navire doit quitter le port et
les eaux neutres.
Si deux navires ennemis sont prets a sortir d'un port neutre simultane-
ment, l'autorite locale etablit, entre leurs appareillage, un intervalle suffi-
sant de vingt-quatre heures au moins. Le droit de sortir le premier appar-
tient au navire le premier entre, ou, s'il ne veut pas en user, a l'autre, a la
charge d'en reclamer Texercice a l'autorite locale, qui lui delivre l'autori-
sation si l'adversaire, dument avise, persiste a rester. Si, a la sortie du
navire d'un belligerant, un ou plusieurs navires ennemis sont signales, le
navire sortant doit etre avert i et peut etre readmis dans le port pour y
attendre l'entree ou la disparition des autres. II est defendu d'aller a la
rencontre d'un navire ennemi dans le port ou les eaux neutres.
Les navires des belligerants doivent, en port neutre, se conduire pacifique-
ment, ob.'ir aux ordres des autorites, s'abstenir de toutcs hostilities, de toute
prise de renfort et de tout recrutement militaire, de tout espionnage et de
tout emploi du port comme base d'operation.
Les autorites neutres font respecter, au besoin par la force, les prescrip-
tions de cet article.
L'Etat neutre peut exiger une indemnite de l'Etat belligerant dont il a
entretenu soit des forces legalement internees, soit des malades et blesses,
ou dont les navires ont, pas megarde ou par infraction a l'ordre du port,
occasionne des frais ou dommage.
INTERNMENT IN RUSSO-JAPANESE WAR. 93
Internment in Russo-Japanese War. — On August 10,
1904, the Czarevitch, a Russian battle ship, accompanied
by destroyers, pursued by a Japanese fleet, sought shelter
in the port of Tsingtau, and the German authorities
interned the vessels. Certain other Russian vessels were
interned at British ports in which they sought shelter.
The Russian transport Lena received like treatment by
the United States at San Francisco.
Conclusion. — (a) From the point of view of both theory
and practice it would seem that the United States com-
mander, under the circumstances as stated in the situa-
tion, would be justified in claiming that belligerent
vessels entering and remaining in the neutral port in
order to escape capture by his vessels, should be interned
for the remaining period of the war.
(b) The authorities of State Y would also be under
obligations to intern the vessels of State X thus seeking
(a) During the war between the United States and
State X a commander of a United States war vessel enters
a port of State Y. a neutral, and sends a cipher message
to the regular telegraph office for transmission to his
home government. Under orders from the authorities
of State Y the message is refused at the office. The
(b) The commander then sends an openly worded
message, which is also refused unless the authorities
are permitted to reword the message without materially
changing its apparent meaning. The authorities also
claim the right to refuse to transmit any portions of the
message which they deem fit, provided they give notice
to the commander that such portions will not be trans-
mitted. The commander again protests against all
How far is the position of State Y correct in each case ?
(a) The position of neutral State Y in refusing to allow
the transmission of the telegram in cipher is correct.
It is entirely proper for a neutral state to forbid such use
of a line or cable.
(b) State Y has full right to prohibit the transmission
of any or all such messages. The authorities of State Y
would have no right to mutilate a dispatch already
accepted for transmission, but could prescribe such
restrictions as seemed necessary in regard to the form
in which messages should be accepted.
NOTES ON SITUATION VI.
(a) Right to control the telegraph. — The first situation
involves the right of a neutral to prohibit the sending
of cipher messages by a belligerent from a neutral point
to his home government.
In this case, as stated, the message is submitted in
cipher by the commander of a United States war vessel
for transmission to his home government.
CONTROL OF NEUTRAL TELEGRAPH. 95
The inference would without reasonable question be
that such message would be military in its nature,
because sent by a military commander to his home
government, and further because embodied in cipher.
The situation then further reduces to that of the right
of a neutral to regulate or cpntrol the sending of official
military dispatches from points within his territory to a
The general right of control of the telegraphic commu-
nication by a government has been repeatedly claimed
and exercised by various governments, particularly in
case of such lines as pass from one state to another.
In general this control extends to the right to demand
priority in the transmission of government dispatches
or to absolute control in case of necessity.
The character of the act would be the same should
the message be submitted for transmission as in the
situation given whether the line of transmission were by
land or submarine telegraph. The possibilities of inter-
ruption of the transmission by the other belligerent
would, however, be very different in the two cases.
Control by the United States. — The right of control
of cables has been asserted in very definite form by the
United States. A somewhat full discussion elsewhere
presented before this Naval War College indicates
The right to legislate for this form of property is therefore in the power
of the state, or in case no legislation has been enacted the legal control
is in the proper department of the Government. This position was affirmed
by Secretary Fish as early as July 10, 1869, as follows:
"It is not doubted by this Government that the complete control of the
whole subject, both of the permission and the regulation of foreign inter-
course, is with the Government of the United States, and that however
suitable certain legislation on the part of a State of the Union may become,
in respect to proprietary rights in aid of such enterprises, the entire question
of allowance or prohibition of such means of foreign intercourse, commer-
cial or political, and of the terms and the conditions of its allowance, is
under the control of the Government of the United States." (Wilson,
Submarine Telegraphic Cables in their International Relations, p. 10.)
President Grant took practically the same position
in his message of December, 1875, and since that time
the position has often been reaffirmed. All foreign sub-
96 TSE OF NEUTBAL TELEGRAPH BY BELLIGERENT.
marine cables having a terminus in the United States
have been landed under a distinct condition that the
"Executive permission is to be accepted and understood
by the company as being subject to any future action
of Congress in relation to the whole subject of submarine
telegraphy.' ' A late opinion of the Attorney-General,
in accordance with which the President was entitled
to act and to order all the departments of executive
character to act, sums up the matter as follows:
The preservation of our territorial integrity and the protection of our
foreign interests is intrusted, in the first instance, to the President. * * *
The President has charge of our relations with foreign powers. It is his
duty to see that in the exchange of comities among nations we get as much
as we give. He ought not to stand by and permit a cable to land on our
shores under concessions from a foreign power which does not permit our
cables to land on its shores and enjoy there facilities equal to those accorded
its cable here. * * * The President is not only the head of the diplo-
matic service, but commander in chief of the Army and Navy. A sub-
marine cable is of inestimable service to the Government in communicating
with its officers in the diplomatic and consular service, and in the Army
and Navy when abroad. The President should therefore demand that
the Government have precedence in the use of the line, and this was done
by President Grant in the third point of his message. * * * The
Executive permission to land a cable is of course subject to subsequent
Congressional action. The President's authority to control the landing
of a foreign cable does not flow from his right to permit it in the sense of
granting a franchise, but from his power to prohibit it should he deem it
an encroachment on our rights or prejudicial to our interests. The uncon-
ditional landing of a foreign cable might be both, and therefore to be
prohibited, but a landing under judicious restrictions and conditions
might be neither, and therefore to be permitted in the promotion of inter-
national intercourse. (22 Opins. Atty. Gen., p. 25.)
Hongkong-M anila cable in 1898. — Certain correspond-
ence carried on during the Spanish-American war of
1898 shows that a new cable between a point occupied
by a belligerent and a neutral point could not properly
be laid in time of war without laying the neutral open
to the suspicion of violation of neutrality.
Mr. Hay to Mr. Day.
London, May 11, 1898.
The Marquis of Tweeddale, president of Hongkong and Manila Telegraph,
informs me that they hold their concessions from Spanish Government,
HONGKONG-MANILA CABLE. ( ,)7
on condition that they shall not send telegrams when forbidden by Spain.
This formal order has been given by Spain . They are therefore compelled
to cease working for the present. He professed friendly feelings and
desire that we should establish ourselves permanently in Philippine Islands,
but declared inability to act otherwise in view of his concessions.
Mr. Day to Mr. Hay.
Department of State,
Washington, May 22, 1898.
Spanish control by special franchise cable from Manila to Hongkong.
Admiral Dewey has possession of the end of the cable at Manila, but can
not control end at Hongkong. British ambassador has telegraphed
British minister for foreign affairs for permission to land new cable at
Hongkong, to be constructed by American company; he also advises
British minister for foreign affairs that you will see him on the subject.
See him at once and ascertain if concession can be had for American
Mr. Day to Mr. Hay.
Department of State,
Washington, May 31, 1898.
Sir: I have received your telegram of the 26th instant, winch, de-
ciphered, reads as follows:
British minister for foreign affairs is taking opinion of the law officers
of the Crown regarding Manila cable. Answer not yet received, but I have
reason to think it will be negative. Concessions regarded as violation of
Respectfully, yours, William R. Day.
Mr. Hay to Mr. Day.
London., June 1, 1898.
British Government regret not at liberty to comply with our request to
land cable at Hongkong.
Mr. Hay to Mr. Day.
London, June 1, 1898.
Sir: Referring to my dispatch No. 407, of the 24th of May, and to my
cabled dispatch of the 26th of May, I now have the honor to transmit a copy
of a note just received from the Marquis of Salisbury, in which he informs me
1S239— 05 7
98 USE OF NEUTRAL TELEGRAPH BY BELLIGERENT,
that he has consulted the lord chancellor and the attorney and the solicitor
general in regard to our request that landing facilities at Hongkong should
be granted to an American cable from Manila, and expresses his regret that
as he is advised by Her Majesty's Government is not at liberty to comply
with the proposal of the Government of the United States.
As you will have learned by my cable dispatch, I had anticipated this
decision. My conversation with high diplomatic and legal authorities had
convinced me that they could not authorize us to land a cable at Hongkong
without a breach of neutrality.
I am, etc., John Hay.
Lord Salisbury to Mr. Hay.
Foreign Office, May 27, 1898.
Your Excellency: You expressed to me on Monday last the desire of
the United States Government that a cable should be laid from Manila to
Hongkong, and requested that Her Majesty's Government would grant
landing facilities at Hongkong for that purpose. You informed me that
the United States Government has been desirous of employing the agency
of the Eastern Telegraph Company for the conveyance of their messages,
but that the company had been compelled to refuse their application by an
intimation from the Spanish Government that the concessions of the com-
pany would be forfeited if they assented to it. I have consulted the lord
chancellor and the attorney and solicitor general in respect to your excel-
lency's communication, and regret to inform you that, as I am advised, Her
Majesty's Government is not at liberty to comply with the proposal of the
Government of the United States.
I have, etc., Salisbury.
(Foreign Relations U. S., 1898, p. 976.)
If consent by the neutral in time of war to the laying
of a new cable between belligerent and neutral territory
would be regarded as contrary to neutrality, the use for
warlike purposes of one already laid would be open to
Carriage of, military dispatches. — It may be said that
the general character of the telegraphic service must be
such as to give the neutral some reasonable ground for
refusing to receive the dispatch in question or any other
dispatch for transmission.
There has been much discussion in regard to the car-
riage of military dispatches by neutral ships, and it is
generally held an act which renders the ship liable to
CARRIAGE OF MILITARY DISPATCHES. 99
Speaking of the general subject of carriage of dispatches
by neutral ships Hall says :
Despatches not being necessarily noxious, a neutral carrier is not neces -
sarily exposed to a penalty for having made a specific bargain to carry them.
He renders himself liable to it only when there is reasonable ground for
belief that he is aware of their connection with purposes of war. As the
bearer of letters can not be assumed to be acquainted with their contents,
the broad external fact of their destination is taken as the test of their
character, and consequently as the main ground for fixing him with or
exonerating him from responsibility. Two classes of despatches are in this
manner distinctly marked. Those which are sent from accredited diplo-
matic or consular agents residing in a neutral country to their government
at home, or inversely, are not presumably written with a belligerent object,
the proper function of such agents being to keep up relations between their
own and the neutral state. The despatches are themselves exempt from
seizure, on the ground that their transmission is as important in the interests
of the neutral as of the belligerent country: and to carry them therefore is
an innocent act. Those on the other hand which are addressed to persons
in the military service of the belligerent, or to his unaccredited agents in
a neutral state, may be presumed to have reference to the war, and the
neutral is bound to act on the presumption. If therefore they are found,
when dispovered in his custody, to be written with a belligerent purpose,
it is not open to him to plead ignorance of their precise contents; he is
exonerated by nothing less than ignorance of the fact that they are in his
possession or of the quality of the person to whom they are addressed.
(Hall, International Law, 5th ed., p. 675.)
The service rendered by the means of the telegraph
may be vastly more important for the issue of the war
than any service through the transmission of dispatches
by ships or messengers. The element of time, so vital in
military operations, is practically eliminated by the use
of the telegraph in communication.
In the general operations of war the present network of
cable and telegraph lines furnishes, if allowed to be used
freely for military purposes, means of information far
more effective than any system of scouts in making
known hostile movements and in anticipating the enemy.
Use of cables during Spanish- American war of 1898. —
The cables from neutral points during the Spanish- Ameri-
can" war in 1898 both furnished information and trans-
mitted military dispatches to the United States, indeed
the cables did much in the way of furnishing information
which the scouting vessels were unable to obtain. The
100 U8E OF NEUTRAL TELEGRAPH BY BELLIGERENT.
telegraph also furnished the general information in regard
to movements of the forces.
There were but few instances in which any objection
was offered by neutral authorities to entire freedom of
use of cable and telegraph lines.
That the consular and other representatives will be
expected to take advantage of telegraphic communica-
tion for warlike purposes is evident from such instructions
as were issued by the United States in 1898:
I >EPARTMENT OF St ATE,
^Yashington, April 15. J 898.
To the consular officers of tin United States:
Gentlemen: You are hereby instructed to keep a sharp lookout for the
arrival and departure of Spanish war ships or other suspicious vessels that
may possibly be fitting out as privateers, and to telegraph at once to the
Department full information in the matter when in your discretion it seems
of sufficient importance. In the case of suspected privateers you will also
inform the diplomatic representative of. the United States, if there be one in
your country, in order that he can make proper representations to the
Government, with a view of preventing the vessel's departure, if possible.
If there be no diplomatic representative in the country where you are
stationed or if you be in a colonial dependency, like representations should
at once be made through the consul-general, if there be one, or if not, by
you directly to the local authority. You will also be alert to catch anything
that will be of interest or value in case hostilities begin, and keep the Depart-
ment fully advised.
All consuls will be expected to remain at their posts during the continu-
ance of the present conditions, and leaves of absence will only be granted
in very exceptional cases and for reasons of the greatest urgency.
William R. Day,
(Foreign Relations, U. S., 1898, p. 1169.)
Attitude oj foreign governments. — Apparently, as tele-
graphic communication was not closed, the sending of
telegrams in regard to the war w r as not regarded as the
use of a port "for any warlike purpose."
The government notice issued from the office of the
colonial secretary in Jamaica, April 23, 1898, regarding
the Spanish- American war states that —
During the continuance of the present state of war, all ships of war of
either belligerent are prohibited from making use of any port or roadstead
in the United Kingdom, the Isle of Man, or the Channel Islands, or in any^of
ATTITUDE OF FOEEIGN STATES, 1898. 101
Her Majesty's colonies or foreign possessions or dependencies, or of any
waters subject to the territorial jurisdiction of the British Crown, as a
station or place of resort for any warlike purpose, or for the purpose of
obtaining any facilities for warlike equipment.
The Spanish Red Book of 1898, containing the diplo-
matic negotiations of that State during the Spanish-
American war, contains many references to the matter
of regulation of telegraphic communication, particularly
by means of submarine cables. The Spanish authorities
demanded that the use of the cable between Mole St.
Nicholas and Santiago be suspended so soon as Santiago
should be occupied by American troops. The company
claimed that it could not do otherwise than affirm that
its continued action was under vis major (communications
No. 59 and 65). Other protests were entered in regard
to the use of cables touching neutral points, but few
definite conclusions were reached.
It is evident that the general opinion in 1898 was that
messages in regard to the war could be received and
transmitted from neutral points in the absence of express
prohibition. The representative of one of the belliger-
ents was forbidden to telegraph the arrival of the Oregon at
the Barbadoes. The authorities, however, learning that
the representative of the other belligerent had informed
his Government of the arrival, allowed like privileges to
At other points telegrams were subjected to delay. In
other cases more specific action was taken.
Portugal took definite action to secure the telegraphic
service of that country against violation of neutrality in
1898 by discontinuing a portion of the service. The
following is the announcement
Direction of the Telegraphic and Postal Services,
Department of Telegraphs.'
It is announced by superior order that at the semaphoric stations on the
Continent, the Azores, and Madeira the telegraphic sea-notice service has
been discontinued (to which reference is made in articles 274, 275, 276, 277,
and 278 of the regulations relative to telegraphic correspondence of Decem-
ber 10, 1892) as regards that portion of it which relates to the appearance,
entrance, and departure of war vessels of all nationalities; but the other
semaphoric services mentioned in articles 265 to 273 of the said regulations,
102 USE OF NEUTRAL TELEGRAPH BY BELLIGERENT.
and in articles 62 and 63 of the international telegraphic regulations
(Budapest revision), will be continued.
Direction of the telegraphic and postal services, April 27, 1898.
For the director-general of posts and telegraphs.
(Foreign Relations of U. S., 1898, p. 895.)
The Publication for the Danish West India Islands in
the Spanish- American war of 1898 says:
Furthermore, dispatches from or to any of the governmental authori-
ties of any of the belligerent powers are liable to be considered as contraband
of war, which it is forbidden to carry.
If it is forbidden to carry such dispatches on board
neutral ships, it might be even more reasonable to pro-
hibit their transmission by the more expeditious means
of the telegraph; for the neutral alone can guard against
the transmission of hostile dispatches by telegraph except
so far as submarine or other lines are liable to interrup-
tion by the belligerents. The belligerent can not guard
against such action as effectively as in transportation of
dispatches by ship.
Lies particuliers, ressortissant a un Etat neutre, qui expedient de la
contrebande de guerre, le font a l'insu de leur gouvernement, et celui-ci
ne peut etre responsable d'actes qu'il a ignores. La situation n'est plus
la meme quand il s'agit de l'emploi des cables. Dans la plupart des pays,
le telegraphe constitue un service public et chaque Etat, en concedant le
droit d'atterrissement a des Compagnies privees, leur impose des obliga-
tions speciales, notamment celle de ne pouvoir transmettre de correspon-
dances que par l'intennediaire de ses bureaux. L'Etat, auquel les articles
7 et 8 de la convention de Saint-Petersbourg accordent un droit de controle
sur le service international, a done le devoir de surveiller les telegrammes;
il doit s'abstenir de transmettre ou de* delivrer les depeches qui lui parai-
traeint contraires a l'impartialite qui doit regir ses relations avec les
belligerants. En agissant autrement, il donne une aide indirecte a l'un
des belligerants et sa conduite Justine des mesures de rigueur contre le cable.
L'Etat neutre devrait meme, pour faire connaitre aux particuliers et
aux autres Etats son intention de ne favoriser par ce moyen aucun des
belligerants, inserer dans sa declaration de neutralite des dispositions
semblables a celles qui furent edictees par le Bresil en 1898.
(F. Rey in Revue Generate de Droit International Public, 1901, page
By the fifth section of the neutrality proclamation of
Brazil in 1898:
GOVERNMENT CENSORSHIP. 103
It is prohibited citizens or aliens residing in Brazil to announce by tele-
graph the departure or near arrival of any ship, merchant or war, of the
belligerents, or to give to them any orders, instructions, or warnings, with
the purpose of prejudicing the enemy.
This position implies that the telegraph lines can be
used only for innocent purposes. It is doubtful, how-
ever, whether this prohibition as worded would cover
a message sent by the commander of a belligerent war
The inference would certainly be that a cipher message
presented by a naval officer for transmission from a neu-
tral port to his home government would be military in
its nature. Even in the absence of statement by the
neutral, by proclamation or otherwise, in regard to the
use of the telegraph by the belligerents, it would be
entirely proper for a neutral to forbid such use as being
of the nature of unneutral service which would probably
lay the means of the service open to interruption by the
other belligerent, and this with just cause.
Conclusion. — The action of the neutral authorities
would be correct and justly within their rights. Hence
the protest of the commander in the first instance need
not be entertained by the neutral.
(b) Government censorship. — The refusal of the neutral
authorities to allow the transmission of an openly worded
message unless allowed to reword the message without
materially changing its apparent meaning, and the claim
of the neutral authorities to the right to refuse to trans-
mit any portions of the message, provided they give notice
to the commander what portions of the message will not
be transmitted, is next brought under consideration.
It has been granted that the refusal of the neutral to
receive a dispatch apparently military in character and
in cipher is clearly within the rights of the neutral.
It is not difficult to understand that an openly worded
dispatch apparently innocent upon its face, when read
in accordance with a prearranged code, may be in reality
a cipher dispatch, and it is against such a contingency
that the neutral authorities seem to be guarding. The
protest of the commander against the rewording of the
104 USE OF NEUTRAL TELEGRAPH BY BELLIGERENT.
dispatch would be in evident support of the neutral view.
Under such circumstances the position of the neutral
authorities is clearly within their right.
The refusal to transmit portions of the message raises
the question of the right of the authorities to make
changes in a message received for transmission from the
representative of a state. Such action, without previous
notice and consent of the commander, might make
changes in the intent of the communication of such nature
as to distinctly injure his cause.
As even entry to the neutral port is a privilege and
not a right, and as any commercial transaction with
those upon the shore is a privilege also, it is entirely
within the rights of the neutral to regulate this commu-
Conclusion. — Accordingly, the neutral authorities have
full right to prohibit the transmission of any or all mes-
sages, and unless the neutral authorities and the com-
mander of the belligerent ship can agree upon the form
of the message, the neutral authorities may even abso-
lute! v refuse to allow its transmission.
The position of State Y is in all cases correct, though
State Y would have no authority to mutilate or change
a message already received.
During the war between the United States and State
X, the senior officer of the United States fleet in a certain
region discovers that newspaper correspondents are send-
ing messages by wireless telegraphy. He has not author-
ized the use of the wireless telegraph by the newspaper
correspondents, and its use may interfere with his military
(a) What treatment should these correspondents
(b) Granting that newspaper correspondents will be
allowed in the field of operations', what regulations should
(a) In the absence of any prohibition the newspaper
correspondents are entitled to use such legitimate means
as the wireless telegraph for the transmission of news
and are entitled to the ordinary treatment given to news-
(b) If newspaper correspondents are allowed within
the field of operations, the correspondents and the agen-
cies of transmission of news should be under the absolute
control of the commanding officer in that military area.
(For general scope of regulations see p. 115.)
NOTES ON SITUATION VII.
(a) What treatment should the correspondents de-
scribed in this situation receive?
Russian Declaration, 1904. — During the Russo-Japanese
war in 1904, in April, there was issued by Admiral Alexieff
a circular in regard to the use of new means of communica-
tion by newspaper correspondents. This was particularly
aimed at certain neutral press boats which were using
wireless telegraph in transmitting news of the war. The
circular handed by the Russian diplomatic agents to the
foreign offices of various states was reported as follows:
" I am instructed by my Government, in order that there
may be no misunderstanding, to inform your excellency
106 CORRESPONDENTS AND WIRELESS TELEGRAPH.
that the lieutenant of His Imperial Majesty in the Far East
has just made the following declaration: In case neutral
vessels, having on board correspondents who may com-
municate news to the enemy by means of improved ap-
paratus not yet provided for by existing conventions,
should be arrested off Kwangtung, or within the zone of
operations of the Russian fleet, such correspondents shall
be regarded as spies, and the vessels provided with such
apparatus shall be seized as lawful prizes."
It should be observed that the Russian Government
merely informs other governments that Admiral Alexieff
has issued this Declaration. The Russian Government
does not assert that it proposes permanently to support
the position taken b} T its lieutenant.
The French text of the Declaration was as follows:
Dans le cas ou des vapeurs neutres, ayant A bord des correspondants
qui communiqueraient a l'ennemi des nouvelles de guerre au moyen
d'appareils perfectionni'S nVtant pas encore prevus par les conventions
existantes — seraient arret*' s aupres de la cote du Kuantoung ou dans la
zone des operations de la flotte russe — les correspondants seront envisages
comme espions et les vapeurs, munis d'appareils de telegraphie sans fil —
saisis en qualite de prise de guerre.
Treatment oj vessels using wireless telegraph . — Considering
the provisions of this circular in the reverse order of their
statement, the first matter is the treatment of the vessels.
The implication is that the equipment with wireless tele-
graphic outfit by a neutral vessel " within the zone of
operations" is sufficient ground for the seizure of the vessel
as lawful prize. If this means that the ordinary rules of
prize courts hold for such a vessel, it is difficult to under-
stand how an adjudication can be made. If the circular
means that such vessels, when actually engaged in com-
municating information of a military character to the
enemy, are guilty of unneutral service and are liable to
the penalties consequent upon such service, the provision
is clear, for such would be the offense, and the regular
penalty would be confiscation of vessel and equipment.
The attempt to bring under the rules of contraband
and violation of blockade many forms of action in time of
war which have only a remote relation to either has led
to confusion, which shows the need of further elucidation
CORRESPONDENTS AS SPIES. 107
of the principles of unneutral service which involves actual
participation by service in behalf of the enemy.
Spies. — The treatment of the correspondents using
wireless telegraphy as spies raises further questions.
The treatment of a captured spy is usually summary
and extreme, and while article 30 of the Hague Conven-
tion respecting the Laws and Customs of War on Land
prescribes that " a Spy taken in the act can not be punished
without previous trial/' yet, the penalty is usually extreme.
If, then, the proclamation of the Russian admiral is admit-
ted as in accord with practice, the position of a newspaper
correspondent would be exceedingly dangerous when
news is communicated to the enemy, since he might become
liable to treatment as a spy.
Both Russia and Japan are, however, parties to the
above-mentioned convention, which defines the term " spy, "
in article 29, as follows:
An individual can only be considered a spy if, acting clandestinely, or
on false pretenses, he obtains, or seeks to obtain, information in the zone
of operations of a belligerent, with the intention of communicating it to
the hostile party.
Thus, soldiers not in disguise, who have penetrated into the zone of
operations of a hostile army to obtain information, are not considered
as spies. Similarly the following are not considered as spies: Soldiers or
civilians, carrying out their mission openly, charged with the delivery of
dispatches destined either for their own army or for that of the enemy. To
this class belong likewise individuals sent in balloons to deliver dispathes,
and generally to maintain communication between the various parts of
an army or a territory.
This rule is in accord with general practice, both for
land and naval warfare. There is no basis upon which
an officer in the military service can set up a new definition.
The fact that a news correspondent uses in transmitting
communications "improved apparatus not yet provided
for by existing conventions" does not constitute him a
spy. It is not the means of communication but the nature
of the act which determines the status of a spy. The
nature of the act is clearly set forth in the Hague Conven-
tion above quoted, and any person, whether newspaper
correspondent or other, guilty of such an act, whatever
the means used, is a spy without further proclamation or
108 CORRESPONDENTS AND WIRELESS TELEGRAPH.
Conclusion as to Russian declaration. — The conclusion
would be, therefore, that a vessel is not liable to seizure
as prize merely from the fact of having on board " improved
apparatus" for communicating news, and that correspond-
ents using such "improved apparatus'' are not liable from
the simple fact of its use to treatment as spies.
On the other hand, newspaper correspondents who act
in such maimer as to bring themselves under the definition
of spies are liable to treatment as such without special
notification in the same manner as any other person. The
vessel concerned in transmitting such information, together
with its equipment for such purpose, is undoubtedly liable
to the penalty of unneutral service, which is confiscation.
It is not possible to defend the position assumed in the
Russian circular in its present extreme form. As Kebedgy
L'emploi de la telegraphie sans fil par des corrcspondants de journaux
a, la guerre a pose une question qui merite d'etre etudiee de pres. Mais
nous ne pensons pas qu'on pourra jamais approuver la decision de traiter
ces correspondants comme des espions. (Revue de Droit International.
VI, p. 451.)
The manifest intent of the circular to control the action
of press agents and press boats within the zone of hostile
operations is, however, proper in view of the danger to
the belligerent which may follow unrestricted communi-
Control of m uspaper corespondents. — Various regulations
have from time to time been issued which affect newspaper
The Hague Convention respecting the Laws and Cus-
toms on Land, provides:
Aeticle XIII. Individuals who follow an army without directly belong-
ing to it, such as newspaper correspondents and reporters, sutlers, con-
tractors, who fall into the enemy's hands, and whom the latter think fit
to detain, have a right to be treated as prisoners of war, provided they
can produce a certificate from the military authorities of the army they
Instructions for the Government of Armies of the L nited
States in the Field prvoide:
Ajrticle 50. Moreover, citizens who accompany an army for whatever
purpose, such as sutlers, editors, or reporters of journals, or contractors,
if captured may be made prisoners of war and be detained as such.
CONTROL OF CORRESPONDENTS. 109
Article 34 of the Brussels Rules of Military Warfare,
1874, provides that —
Persons in the vicinity of armies, but who do not directly form part of
them, such as correspondents, newspaper reporters, vivandiers, con-
tractors, etc., may also be made prisoners of war.
These persons should, however, be furnished with a permit, issued by a
competent authority, as well as with a certificate of identity.
and article 23 defines prisoners of war as " lawful and
The Oxford Manual of the Laws of War on Land of 1880
gave to such persons a more lenient treatment, as is shown
in article 22 :
Persons who follow an army without forming a part of it, such as corre-
spondents of newspapers, sutlers, contractors, etc., on falling into the power
of the enemy, can only be detained for so long a time as may be required
by military necessity.
The rules of the Hague Convention of 1899 do not
define prisoners of war, but do provide for their treat-
ment, and provide that newspaper correspondents and
reporters shall have like treatment when captured.
Certification of newspaper correspondents. — The implica-
tion of the last clause of Article XIII, viz, " provided they
(newspaper correspondents, etc.) can produce a certifi-
cate from the military authorities of the army they were
accompanying," is that in the future such correspond-
ents are to be regularly certified by the commander of
the forces with which they for the time being are.
According to the Hague Convention, the right to grant
certificates to correspondents is in the hands of the com-
mander. The commander, in the absence of orders to the
contrary, would be authorized to prescribe the regula-
tions under which certificates would be granted and by
implication would be able to exclude from the field of
his authority those not properly certified.
Further, there is implied in the right to grant the cer-
tificate the right to withhold, which would be a means by
w T hich the character of the correspondents could be in a
There would also be implied the right to make such
rules for the government of correspondents as might at
the time seem good.
110 CORRESPONDENTS AXD WIRELESS TELEGRAPH.
The rule of the Hague Convention would also seem to
indicate that persons not having a proper certificate
would not necessarily be entitled to the treatment of a
prisoner of war. If this be the case, the military com-
mander would properly insist that correspondents should,
if with the forces, be provided with proper certificates.
A plan making a certificate a compulsory prerequisite
for accompanying military forces would accord with the
spirit of the Hague Convention, and would put the con-
trol of correspondents in the hands of the commander
of the forces.
The rules of the Hague Convention were drawn with
reference to warfare upon land, and have been accepted
by practically, all the states of the world. The United
States authorities would, therefore, be fully justified in
demanding that those correspondents only should be
allowed with its army who were properly certified.
If it is generally accepted that the military authorities
of forces on land should control correspondents, it is even
more important that such control should be extended to
correspondents in the neighborhood of naval operations,
for the disclosure of movements of a fleet or of a war ves-
sel may be even more serious than a similar disclosure in
regard to forces upon land.
Right-minded newspaper men ask for fair treatment
only and would regard regulations which would give
equality of opportunity to all correspondents as in every
way desirable; otherwise they would not be fit persons
to accompany a military force on sea or land.
The control should not, of course, be limited to the cor-
respondents and reporters alone, but should be extended
to the whole personnel and all agencies concerned in
gathering and forwarding news of the war.
Such control of the personnel and agencies for gather-
ing and forwarding news could be justly demanded, even
the Red Cross personnel and agencies must submit to con-
trol of the commanding military authority.
The naval commander has a right to control hospital
ships according to the Hague Convention, 1899, for the
GENERAL GROUNDS OF CONTROL. Ill
Adaptation to Maritime Warfare of the Principles of the
Geneva Convention, which provide that hospital ships —
must not in any way hamper the movements of the combatants.
During and after an engagement they will act at their own risk and peril.
The belligerents. will have the right to control and visit them; they can
refuse to help them, order them off, make them take a certain course, and
put a commissioner on board; they can even detain them if important cir-
cumstances require it.
As far as possible, the belligerents shall inscribe in the sailing papers of
the hospital ships the orders they give them.
The naval commander has full right to demand equal
control of correspondents, press boats, dispatch boats,
and the like, whose mission may be from its nature far
more dangerous than the mission of hospital ships to the
success of the military plans.
Regulations somewhat similar in spirit to those for the
government of hospital ships and personnel would give
to the commander sufficient control without unduly lim-
iting the freedom of action of press boats and press
It is on its face far more necessary for a state that its
commanders should be unhampered in the prosecution of
their military operations in order that they may bring
them to a successful issue than that the people of a state
should know from hour to hour exactly what the military
force is doing. This is what the enemy desires particu-
larly to know.
War is not ordinarily undertaken to give an opportunity
for the display of journalistic enterprise, and no com-
mander would be justified in unnecessarily sacrificing
resources or men to such enterprise. This being axio-
matic, it may also be said that the people are entitled to
such knowledge of the course of the war as may not inter-
fere with military operations. The commanding officer
in a given area is the best judge as to what information
shall be published.
This natural conclusion leads to the further one that
the commanding officer must control the news sent from
the field of operations. This can be done by the common
means of censorship of dispatches and news. This cen-
sorship may extend to the entire prohibition of the send-
112 CORRESPONDENTS AM) WIRELESS TELEGRAPH.
ing of any dispatches or to the determination of what shall
be sent and of the form in which it shall be sent.
From what has been said, it is evident that newspaper
correspondents, though using wireless telegraphy, are not
therefore spies. If guilty of acts of spying, then they are
of course liable to the consequences. The simple sending
of messages in regard to the war does not in itself consti-
tute spying. It is an act commercial rather than mil-
itary in its nature.
After newspaper correspondents have been forbidden
within a given area or alter they have been notified not
to communicate any news in regard to military affairs,
the sending of dispatches would constitute an offense
with which the commanding officer would have full power
Conclusion. — "Without previous notice in regard to or
regulation of the agencies by which newspaper corre-
spondents may send news, it is presumed that all agencies
which may not involve perfidy are legitimate. As the
correspondents in this instance had not disobeyed any
regulation, but had merely, as would be expected, used
the most modern means of communication, they are not
therefore liable to any penalty. It would be presumed
that the agency of the wireless telegraph would be open
to them in absence of prohibition and unless forbidden
no authorization would be necessary.
The correspondents would therefore be acting in a
proper manner and would not be liable to any penalty
for the use of the agency of the wireless 'telegraph when
such use is not prohibited.
This conclusion shows the emphatic necessity of the
regulation of news gathering and transmission on and
from the field of military operations.
(b) Granting that newspaper correspondents will be
allowed in the field of operations, what regulations should
Japanese regulations, 190^. — The Regulations for War
Correspondents issued by the Japanese Government to
hold during the Russo-Japanese war accord with the
principles set forth above. These regulations are as fol-
JAPANESE REGULATIONS, 1904. 113
REGULATIONS FOR WAR CORRESPONDENTS.
Article 1. Newspaper correspondents who wish to follow the army are
required to make application to the department of war, together with a
sketch of their antecedents and a document of personal guaranty signed by
the proprietor of the newspaper to which they belong.
In case of foreign correspondents, their application shall be sent through
their respective ministers or consuls and the department of foreign affairs.
Foreign correspondents need only mention in their application the name
of the newspaper to which they belong and dispense altogether with the
presentation of sketches of antecedents and papers of personal guaranty.
Art. 2. The applicant must have been engaged in journalistic work for
not less than a year as a member of a newspaper staff.
Art. 3. Foreign correspondents who can not understand the Japanese
language may take with them one interpreter each into the field.
Any correspondent requiring an interpreter may engage one himself and
present an application on the interpreter's behalf, accompanied by a paper
of personal guaranty for the same.
Art. 4. A foreign correspondent, in addition to his interpreter, may
engage one or more servants when circumstances demand it, the procedure
of engagement to be in accordance with the foregoing article.
Art. 5. The authorities, when they consider it necessary, may cause the
selection of one person to act as joint correspondent for several newspapers.
Art. 6. In case any person is allowed to accompany the Japanese forces
an official permit shall be given him.
Art. 7. The applicants allowed as stated shall be attached to a "koto
shireibu" (higher commanding officer).
Art. 8. Correspondents shall always wear foreign clothes, and to their
left arms shall be attached a white band, measuring about 2 inches in width,
on which the name of the newspaper offices which they represent shall be
written in Japanese with red ink.
Art. 9. Correspondents shall always carry with them the official permit,
and shall, when asked, show it to officers and officials belonging to the
Art. 10. Correspondents shall always observe the rules and orders to
be issued by the koto shireibu so long as they remain with the Japanese
forces. In case they disregard the above rules and orders, the authorities
of the koto shireibu may refuse to allow them to accompany the Japanese
Art. 1 1 . The war correspondent will not be allowed to dispatch his com-
munications (whether they be correspondence for publication or private
letters or telegrams, etc.) until after their examination by the officer
appointed for the purpose by the higher commanding officer. No com-
munication containing cipher or symbols will be permitted to be dispatched.
Art. 12. The army and its officers will accord, as far as circumstances
permit, to the war correspondent suitable treatment and facilities, and,
when in the field and in case of necessity, give him food, etc., or, at his
request, give him transportation in vessels or vehicles.
114 CORRESPONDENTS AND WIRELESS TELEGRAPH.
Art. 13. In case the war correspondent is guilty of violation of the
criminal law, military criminal law, law for the preservation of military
secrets, etc., he may be adjudged and punished by the court-martial
according to the military penal code.
Art. 14. Article 6 to 13 are applicable to interpreters and servants.
(Daily Consular Reports, 1904, No. 1912, p. 2.)
Naval regulations. — The regulations particularly apply-
ing to naval war correspondents are:
REGULATIONS GOVERNING NAVAL WAR CORRESPONDENTS.
Article 1. A newspaper war correspondent desirous to accompany
the navy shall make application to the naval staff, imperial headquarters,
Art. 2. A newspaper war correspondent shall obey all orders of the
commanding officer of the fleet which he accompanies.
Art. 3. No communications concerning war shall be sent until after they
have been examined by officers nominated for the purpose by the com-
manding officer of the fleet which he accompanies.
Art. 4. The commanding officer of the fleet may cancel the permission
granted to a newspaper war correspondent.
Art. 5 Necessary regulations concerning the treatment of a newspaper
war correspondent shall be fixed by the commanding officer of the fleet.
Art. 6. A newspaper war correspondent shall wear European dress and
put on a low round-shaped cap, with a visor, and attach on his left arm a
strip of white woolen cloth 1 sun (1.193 inches) wide, with the characters
* * * (paper correspondent) on it.
Art. 7. A newspaper correspondent shall always earn' his permit, men-
tioned in article 1, with him, and shall show it when asked by army or navy
authorities. (Daily Consular Reports, 1904, No. 1912, p. 4.)
Effect of Japanese rules. — The effective control of the
news relating to military movements during the Russo-
Japanese war by the Japanese authorities fully justifies
the rules enunciated by Japan. It is doubtless true that
some of the correspondents have found it hard not to be
upon the field of operations, but war is not undertaken
for the sake of gratifying the curiosity of the public
which reads the accounts of battles and military move-
ments. Provided the correspondents have had fair
treatment, there is no reason for complaint. The state
must determine the general policy in regard to war cor-
respondents, and the commanding officer in a given region
must determine the particular application of this policy.
Russian regulations. — The following, according to the
SCOPE OF NECESSARY REGULATIONS. 115
Agence tel'graphigue russe, are the regulations for the
conduct of foreign correspondents allowed within the
field of operations:
Les Strangers doivent produire une recommandation de leur gouverne-
ment aupres du ministere russe des affaires etrangeres. Chaque corre-
spondant doit s'engager, par ecrit, A ne propager aucune nouvelle contenant
des critiques, des dispositions ou des personnes, a representer les faits
conformement a la verite et a supprimer les nouvelles qui ne peuvent se
controler. La violation de ces dispositions, les indiscretions, le manque
de tact entrainent des observations, et, suivant les cas, l'eloignement du
theatre de la guerre. Pour tous les correspondants sans exception, l'entree
de l'amiraute, les docks et autres installations de la marine, ainsi que
l'emploi de vapeurs sur les rades de Port Arthur et de Vladivostock, sont
interdits. Les correspondants doivent s'engager a ne pas demander
d'exceptions a ces dispositions. A leur arrivee sur le theatre des operations,
ils doivent se rendre au quartier general et prouver leur identite par une
photographie ; l'etat-major general les dirige alors sur l'etat-major dont
ils dependent. lis sont responsables de leurs domestiques. Comme
insigne, ils doivent porter un brassard au bras gauche. Les depeches
chiffrees sont interdites. La censure des informations a lieu au quartier
general, aupres de l'etat-major de l'arm'e de Mandchourie, et a l'adminis-
tration militaire de Kharbin, Niou-Chouang, Port Arthur et Vladivostock.
(Quoted in Revue de Droit International, VI, p. 448.)
General scope oj necessary regulations. — These rules
should be such as —
1. To place the correspondents under the control of
the naval commander.
2. To place the control of the news sent in the hands of
3. To enable the commander to prohibit absolutely the
sending of any information from the field of operations.
4. To place the agencies by which news are sent
under control of the commander.
5. To enable the commander to inflict penalties for
violations of any regulations he may make.
The commander should therefore control the corre-
spondents themselves, determine the news to be sent, or
prohibit communications entirely, control the means of
sending by the establishment of proper regulations and
Conclusion. — From these conclusions it is manifest
that correspondents must obtain a quasi-official standing,
116 CORRESPONDENTS AND WIRELESS TELEGRAPH.
and in order that control may be effective, that the
agencies by which communication is had shall also be
official to the extent of being under absolute military
Private, unresponsible persons or agencies would
therefore be forbidden within the field of operations or
the strategic area.
Note.— Since the above was printed, and too late for further reference, an article
by Professor T. S. Woolsey supporting many of the positions herein taken has
appeared in the Yale Law Journal for March, 190?, p. 247.
During the war between the United States and State
X, two war vessels of State X are lving in the harbor
of neutral State Y. These vessels go out of the harbor,
beyond the jurisdiction of State Y, are damaged
severely by war vessels of the United States, and return
to the harbor of State Y, where they are abandoned and
sink. The crews of these vessels are succored and re-
ceived on board of neutral war vessels belonging to
States A, B, and C ; which are within the port. The
United States commander claims these crews as prisoners
(a) Is the claim justifiable ?
(b) What disposition should be made of the crews if
the commanders claim is not allowed ?
(a) The claim of the United States commander that
the crews are prisoners of war is not justifiable. The
crews had at no time been within the power of the United
(b) The crews should be interned or otherwise disposed
so that they may not again take part in the war.
NOTES ON SITUATION VIII.
(a) The United States war vessels damage two ves-
sels of State X in battle on the high seas. These vessels
seek refuge in the neutral port of State Y. There the
vessels are abandoned and sink. The crews of the aban-
doned vessels are received upon neutral war vessels of
other States than Y, which vessels chance to be in the
port. The United States commander then claims the
crews of the vessels as prisoners of war.
The first question which naturally arises is as to the
status of the crews of the abandoned vessels of State X.
Prisoners of war. — Are they prisoners of war? The
definition of the term prisoner of war is fairly uniform.
118 RESCUE OF SHIPWRECKED BELLIGERENTS.
According to the Instructions for the Government of
Armies of the United States in the Field (General Orders,
No. 100), article 49—
A prisoner of war is a public enemy armed or attached to the hostile
army for active aid, who lias fallen into the hands of the captor, either fight-
ing or wounded, on the field, or in the hospital, by individual surrender, or
All soldiers of whatever species of arms; all men who belong to the rising
en masse of the hostile country; all those who are attached to the army for
its efficiency and promote directly the object of war, except such as are
hereinafter provided for: all disabled men or officers on the field or else-
where, if captured; all enemies who have thrown away their arms and ask
for quarter, are prisoners of war, and as such exposed to the inconveniences
as well as entitled to the privileges of a prisoner of war.
The Brussels Convention of 1874, article 23, says:
Prisoners of war are lawful and disarmed enemies. They are in the
power of the enemy's Government, but not of the individuals or of the corps
who made them prisoners.
They should be treated with humanity.
Even 7 act of insubordination authorizes the necessary measures of
severity to be taken with regard to them.
All their personal effects, except their arms, are considered to be their own
According to the Oxford Manual of the Laws of War
on Land, 1880:
Art. 21. Persons forming part of the armed forces of belligerents, on fall-
ing into the power of the enemy, must be treated as prisoners of war, con-
formably to article 61, and those following it.
This rule applies to messengers openly carrying official dispatches, and to
civil aeronauts employed to observe the enemy or to keep up communication
between different parts of the army or territory.
The Hague Convention, 1899, provides that —
Art. 3. The armed forces of the belligerent parties may consist of com-
batants and noncombatants. In case of capture by the enemy both have
a right to be treated as prisoners of war.
Reasons why crews are not prisoners of war. — It will be
seen from the Situation under discussion that the provi-
sions requisite for the making of the crews prisoners of
war had not been met in the case of the crews of the
vessels of State X.
The single ground of failure to capture therefore
would be sufficient to vitiate the claim of the commander.
PUBLIC VES8EL8 IN FOREIGN PORTS. 119
There are various other reasons why the claim of the
commander is not correct. (1) The enemy's ships must
come within the power of the United States commander
before they can be made prisoners of war. In this Situ-
ation while the enemy's ships are damaged they had not
come under the power of the United States commander,
and the crews had not, therefore, been made prisoners
of war. At no time had the commander had the power
to say what should be the disposition of the crews.
Before the crews had deserted the vessels they had been
under their own flag, and this was still the case after
they had left the vessel, provided they had left in their
(2) On passing within the limits of neutral State Y,
the field of belligerent action was passed. The only
relations which the vessels of State X could maintain in
the port would be peaceful relations. Hence the com-
mander could not in port take prisoners of war without
violating the neutrality of State' Y.
(3) On going on board the war vessels of States A, B,
and C, the crews of the vessels of State X passed within
the jurisdiction of those States, and neither neutral State
Y nor the United States could presume to exercise juris-
diction over those vessels because of their reception.
Xeutral State Y would not interfere, because the crews
of the vessels of State X were apparently under their
own flag until they had passed under the flags of A, B,
and C. Even if the crews had been compelled to enter
the water without boats, and had been obliged to swim
to the vessels of A, B, and C, though it might be held
technically that while in the water and not under the
organized control of their own officers the crews were
under the jurisdiction of State Y because State Y was
sovereign over the harbor waters, yet when they passed
on board the war vessels of States A, B, and C, the crews
passed out of the jurisdiction of State Y.
Public vessels in foreign ports.— Halleck, speaking of
the general privileges of public vessels in foreign ports,
Where there are no express prohibitions, the .ports of one state are con-
sidered as open to the public armed and commissioned vessels of every other
120 RESCUE OF SHIPWRECKED BELLIGERENTS.
nation with whom it is at peace. Such ships are exempt from the jurisdic-
tion of the local tribunals and authorities, whether they enter the ports
under express permission, stipulated by treaty, or a permission implied from
the absence of prohibition. This exemption, which is termed "extra-
territoriality, ' ' extends not only to the belligerent ships of war, privateers,
and the prizes of either, who seek a temporary refuge in neutral waters from
the casualties of the sea and war, but also to prisoners of war on board any
prize or public vessel of her captor. Such vessels, in the command of a
public officer, possess in the ports of a neutral the rights of extra-territorial-
ity, and are not subject to the local jurisdiction. But whatever may be the
nature and extent of the exemption of the public or private vessels of one
state, from the local jurisdiction in the ports of another, it is evident that
this exemption, whether express or implied, can never be construed to
justify acts of hostility committed by such vessel, her officers and crew, in
violation of the law of nations against the security of the state in whose ports
she is received, or to exclude the local tribunals and authorities from resort-
ing to such measures of self-defense as the security of the state may require.
Therefore a public vessel would not hesitate to give up to the local authori-
ties a person accused of a serious crime who might come aboard her, and it is
probable that she might even do so in the case of a person evading con-
scription. (Halleck's Internat. Law, vol. 1, p. 215. )
As neutral State Y would not presume to exercise
jurisdiction over the war vessels of States A, B, and C,
under the circumstances, much less could the commander
of a United States war vessel in a neutral port exercise
any authority or even claim as prisoners the crews of the
vessels of State X, which had never been in his power.
This case also differs from a case in which the shipwrecked
or wounded are picked up upon the scene of a naval
engagement. These crews in the harbor of State Y are
removed from the exercise of authority on the part of the
United States commander: (1) by the fact that the succor
was afforded in a neutral port, and (2) by the fact that the
succor was afforded upon neutral vessels of other states
temporarily within the neutral port of Y.
Conclusion. — The claim of the United States com-
mander that the rescued crews should be delivered to him
as prisoners of war could not be sustained.
(b) There next arises the question of the disposition of
these crews which have gone on board the war vessels of
States A, B, and C.
Captain Mohan's 'position. — Captain Mahan, in a paper
before the peace conference at The Hague, on June 20,
THE HAGUE DISCUSSION. 121
1899, argued that some definite provisions should be
made for crews shipwrecked in battle. He said :
* * * On a field of naval battle the ships are constantly in movement ;
not merely the movement of a land battle, but a movement of progress, of
translation from place to place more or less rapid. The scene is here one
moment; a half hour later it may be five miles distant. In such a battle it
happens that a ship sinks: her crew become naujrages; the place of action
shifts; it is no longer where these men are struggling for life; the light
cruisers of their own side come to help, but they are not enough; the hospital
ships with the neutral flag come to help; neutral ships other than hospital
also arrive; a certain number of combattants nauf rages are saved on board
neutral ships. To which belligerent do these men belong? It may happen
that the neutral vessel, hospital or otherwise, has been with the fleet opposed
to the sunken ship. After fulfilling her work of mercy she naturally
returns to that fleet. The combattants naujragts fall into the power of the
enemy, although it is quite probable that the fleet to which they belong
may have had the advantage.
I maintain that unless some provision is made to meet this difficulty
much recrimination will arise. A few private seamen, more or less, a few
sub-officers, may not matter, but it is possible that a distinguished general
officer, or valuable officers of the lower grade may be affected. This will
tend to bring into discredit the whole system for hospital ships; but further,
while hospital ships, being regularly commissioned by their own govern-
ment may be supposed to act with perfect impartiality, such presupposition
is not permissible in the case of vessels named in Article 6. Unless the
status of combattants naujragh saved by them is defined, the grossest
irregularities may be expected — the notoriety of which will fully repay the
class of men who would perpetrate them.
As many cases may arise, all of which it is impossible to meet specifically,
I propose the following additional articles, based upon the single general
principle that combattants naujragh, being ipso facto combatants hors de
combat, are incapable of serving again during the war, unless recaptured or
until duly exchanged.
Captain Mahan embodied bis ideas in the following
articles, which, however, were not adopted:
1. In the case of neutral vessels of any kind, hospital ships or others,
being on the scene of a naval engagement, which may, as an act of humanity,
save men in peril of drowning, from the results of the engagement, such
neutral vessels shall not be considered as having violated their neutrality
by that fact alone. They will, however, in so doing act at their own risk
2. Men thus rescued shall not be considered under the cover of the neutral
flag, in case a demand for their surrender is made by a ship of war of either
belligerent. The}- are open thus to capture or to recapture. If such
demand is made, the men so rescued must be given up, and shall then
have the same status as though thev had not been under a neutral flag.
122 RESCUE OF SHIPWRECKED BELLIGERENTS.
3. In case no such demand is made by a belligerent ship, the men so
rescued, having been delivered from the consequences of the fight by
neutral interposition, are to be considered itoi's de combat, not to serve for
the rest of the war unless duly exchanged. The Contracting Governments
engage to prevent, as far as possible, such persons from serving until dis-
charged. (Holls. Peace Conference at The Hague, p. 504.)
Captain Mahan's first article is very general. It covers
" neutral vessels of any kind, hospital or others, being
on the scene of a naval engagement, which may, as an
act of humanity, save men in peril of drowning from
the results of the engagement." In the second article
he maintains that "men thus rescued shall not be con-
sidered under the cover of the neutral flag, in case a
demand for their surrender is made by a ship of war of
These provisions as he mentions would particularly
apply to cases involving circumstances similar to those
under which the yacht Deerhound saved men of the
Alabama, of which Mr. Seward said to Mr. Adams in a
letter of July 15, 1864:
I freely admit that it is no part of a neutral's duty to assist in making cap-
tures for a belligerent, but I maintain it to be equally clear that, so far
from being neutrality, it is direct hostility for a stranger to intervene and
rescue men who had been cast into the ocean in battle, and then carry them
away from under the conqueror's guns.
The case under consideration in this situation, how-
ever, does not contemplate rescue by a private ship as
in the case of the Deerhound. but by a ship of war not
upon the scene of hostilities, but in a neutral port. The
crews are received on board a neutral war vessel, and a
war vessel from its very nature can not be subjected to
the provisions of the above articles.
Lawrence's opinion. — Lawrence, in his " War and Neu-
trality in the Far East," page 71, which appears as this
is written, says:
The Chemulpo incident shows, among other things, that provision will
have to be made in future for assistance by neutral ships of war, as well
as by neutral hospital ships and ordinary neutral vessels. The nature of
such provision is still open to controversy. We may hope to see the rejec-
tion of Captain Mahan's idea that neutral rescuers should be bound to give
up their unhurt refugees to the first belligerent war ship which demands
HAGUE CONFERENCE PROVISIONS. 123
them. Another project is that the neutral vessel which has gathered them
up should report itself immediately to the belligerent commander controll-
ing the scene of operations and take its orders from him, which would
mean in most cases the surrender of the refugees as prisoners of war. This
latter plan might sometimes be found difficult in practice. There have
been cases when neither party controlled the scene after the action was over.
The indecisive conflict between Sir Robert Calder and Villeneuve on
July 22, 1805, is a case in point. Another instance may be taken from the
battle of the Yalu, fought on September 17, 1894, at the close of which
both the Japanese and the Chinese fleets left the waters in which they had
contended. But quite apart from the fact that sometimes there may be
no commander in control on the spot where the battle was fought, the
principle underlying the proposals we have described seems inadmissible.
It involves the deneutralization of humanity. If the rescued men are
surrendered to their own side, they will again become combatants; if they
are surrendered to the other side, they will be made prisoners of war. To
assist in bringing about either of these consummations is surely inconsistent
with neutrality. There remain the alternatives of " internment" — that
is to say, keeping them in honorable detention under neutral guardianship
for the rest of the war — or handing them over to their own friends in
exchange for a solemn promise that they shall not serve again while hos-
tilities continue. * * *
We interpret the obligations of neutrality and humanity more strictly
than our fathers, but we need an international agreement to give symmetry
and stability to our views. When it comes to be negotiated the precedent
of Chemulpo will undoubtedly make for a very wide right of rescue on the
part of neutral vessels, both public and private. But we may hope it will
not be pressed in favor of anything approaching a right of interference in
the struggle. It is one thing to save the life of a man struggling in the
water, quite another to help him in keeping himself and his ship out of the
hands of the victor.
Hague Conference Provisions. — Article VI of the " Con-
vention Between the United States of America and
Certain Powers for the Adaptation to Maritime Warfare
of the Principles of the Geneva Convention of August 22,
1864" (Hague Convention), ratified by the United States
in 1900, provides that—
"Neutral merchantmen, yachts, or vessels having or taking on board
sick, wounded, or shipwrecked of the belligerents can not be captured for
so doing, but they are liable to capture for any violation of neutrality they
may have committed."
Article LVII of the " Convention Between the United
States of America and Certain Powers, With Respect to
the Laws and Customs of War on Land ; ' (Hague Conven-
124 RESCUE OF SHIPWRECKED BELLIGERENTS.
tion), ratified by the United States in 1902, provides for
the internment of the belligerent troops as follows:
Article LYII. A neutral state which receives in its territory troops
belonging to the belligerent armies shall intern them, as far as possible,
at a distance from the theater of war.
It can keep them in camps, and even confine them in fortresses or loca-
tions assigned for this purpose.
It shall decide whether officers may be left at liberty on giving their
parole that they will not leave the neutral territory without authorization.
Article LVIII. Failing a special Convention, the neutral State shall
supply the interned with the food, clothing, and relief required by
At the conclusion of peace, the expenses caused by the internment shall
be made good.
Article LIX. A neutral State may authorize the passage through its
territory of wounded or sick belonging to the belligerent armies, on condi-
tion that the trains bringing them shall carry neither combatants nor war
material. In such case, the neutral State is bound to adopt such measures
of safety and control as may be necessary for the purpose.
Wounded and sick brought under these conditions into neutral territory
by one of the belligerents, and belonging to the hostile party, must be
guarded by the neutral State, so as to insure their not taking part again
in the military operations. The same duty shall devolve on the neutral
State with regard to wounded or sick of the other army who may be com-
mitted to its care.
Article LX. The Geneva Convention applies to sick and wounded
interned in neutral territory.
If the crews of the abandoned war vessels of State X
had gone to the shore of State Y as a portion of the mili-
tary force of State X they would have been interned
during the remainder of the war, according to the provi-
sions of the Hague Convention, to which most of the
States of the world are parties; or, even if not a party to
the convention, State Y would intern them, in accord
with the general international practice.
Effect of going on hoard 'public vessels. — In going on
board of the war vessels of States A, B, and C, the crews
of the vessels of State X practically enter the jurisdic-
tion of States A, B, and C. Upon these war vessels of
States A, B, and C no other State would claim any juris-
diction unless the peace of the port or the safety of the
State was threatened, and even then action would ordi-
narily extend only to expelling the vessel from the port.
Hence neither Y nor the United States would interfere.
CASES OF RESCUE. 125
As the crews of the abandoned vessels have, by enter-
ing the war vessels of States, A, B, and C, entered within
the jurisdiction of those States, it may be presumed that
they will observe their international obligations. It
would not be incumbent upon the commander of the
United States war vessel to inform the other command-
ers as to their obligations or to make claims. He
might with propriety confer with them in regard to the
disposition of the crews in question and indicate the
line of conduct that he thought to be proper.
Chino- Japanese war of 1894-95. — During the Chino-
Japanese war of 1894-95, certain neutral war ships res-
cued Chinese soldiers in Korean waters. Of these acts
As already mentioned, the French war ship Lion brought 45 Chinese
soldiers to Chemulpo, and a German war ship sent back 120 Chinese soldiers
from the islands in the Korean waters to Tientsin. The action of the
French man-of-war was very humane in rescuing the Chinese, who were
clinging to the masts of the sunken ship, but the act of the German vessel
was not admissible from a legal point of view. The Chinese who were on
the islands in the Korean waters were not in danger of their lives; on the
other hand, it was said that they were displaying their usual lawlessness
in plundering the villages of the island. They belonged to the crack regi-
ment of the Chinese army, and it might be expected that they would
serve again as soldiers. To send back these soldiers to China was noth-
ing but giving assistance to one of the belligerents. By the law of nations,
any belligerent can release prisoners on exacting an oath that they will not
take arms again. But there is no precedent for a neutral restoring soldiers
to one belligerent without taking the trouble to exact such an oath from
them. (International Law during the Chino-Japanese war, p. 51.)
Takahashi admits that the soldiers might have been
paroled, but denies the right of a neutral war vessel to
Chemulpo affair, 190 4. — The case of the rescue of the
officers and crews of the Russian ships Variag and
Korietz in the harbor of Chemulpo, in the Russo-Japanese
war affords a valuable precedent. The accounts of the
circumstances vary somewhat (Lawrence 67, War and
Neutrality in the Far East), but the following seems to
be the course of events :
Japan severed her diplomatic relations with Russia
on February 6, 1904.
126 RESCUE OF 8HIPWBECKED BELLIGERENTS.
On February 8th Admiral Uriu, of the Japanese navy,
demanded of the senior Russian naval officer that he leave
with the forces under his command the harbor of Che-
mulpo before noon of the 9th of February. In case of
failure to comply with the demand, Admiral Uriu threat-
ened attack upon the Russians. Admiral Uriu cautioned
neutral vessels to keep clear of the field of possible action.
Earlier in the day the Russian gunboat, Korietz, had
started for Port Arthur from Chemulpo, but seeing the
Japanese vessels approaching, had returned to Chemulpo.
It appears that by midnight of February 8th the Japanese
forces, which had been landed, were ineffective possession
of Chemulpo. Early in the morning of the 9th the
Japanese war vessels steamed out beyond the harbor.
Before noon the Russian vessels, Variag and Korietz,
started out. Before 1 o'clock these vessels, after a brief
engagement, returned to the harbor of Chemulpo. The
Variag was abandoned and sank during the afternoon.
Boats from neutral war vessels in port received the per-
sonnel of the Variag and put them on board the British
war vessel Talbot and the Italian war vessel Elba. The
crew from the Russian war vessel Korietz, which seems
not to have been injured in the engagement, later left
that vessel in their own boats and went on board the
French war vessel Pascal. Shortly afterwards, the Korietz
blew up. The crew of a merchant vessel under the Rus-
sian flag, after setting fire to their vessel, also sought
refuge in the Pascal.
While it has been claimed that the Japanese admiral
demanded the Russian refugees as prisoners of war, the
following is, upon good authority, asserted to be the fact :
The admiral in command of the Imperial Japanese fleet at Chemulpo did
not make any demand for surrender to him of the Russian officers and men
rescued from the sunken ships Variag and Korietz.
The survivors of the above-mentioned ships were temporarily taken on
board the French man-of-war Pascal, British man-of-war Talbot, and Italian
man-of-war Elba, but the representatives of France, Great Britain, and Italy
at Seoul, having asked the views of the Japanese representative there in
regard to the mode of sending back the said Russians, the Imperial Govern-
ment instructed their representative to consent to the proposition on the
(1 ) That the survivors of the Russian ships would be sent to Shanghai.
RESCUE BY NEUTRAL WAR VESSEL8. 127
(2) That the Russian Government would give assurance that the said
survivors would not be allowed to go to any place north of Shanghai.
The French representative addressed an official note to the Japanese
representative, transmitting therewith a list of the names of the Russian
survivors, signed by the captain of the Pascal, and giving assurance that the
captain of the said vessel would not hand over the Russians to the authori-
ties of other countries unless he obtained a guarantee from the said authori-
ties to the effect that they would never be allowed to again take part in any
act of hostilities. Thereupon the Pascal was permitted to sail for Shanghai
with 8 officers and 39 petty officers and men from the Variag and 9 officers
and 160 petty officers and men from the Korietz on board.
The British representative also addressed an official note, transmitting
therewith a list of the names of the Russian survivors, signed by the captain
of the Talbot, declaring that until the cessation of hostilities they would be
detained within the British dominions. Thereupon the British ship
Amphitrite was permitted to sail for Hongkong with the chief executive
officer and other officers and men from the Variag on board, altogether
The Italian representative addressed an official note to the Japanese repre-
sentative, transmitting therewith a list of the Russian survivors, stating that
they would be taken to Shanghai and there instructions from the Italian
Government as to the disposition of these men would be asked. Thereupon
the Italian man-of-war Elba was permitted to leave for Shanghai with 7
officers and 174 petty officers and men from the Variag.
This recent example is in accord with the general
principles governing in analogous cases.
Kleen's opinion. — Kleen gives a conclusion also which
would support the action of the neutral war vessels.
He says :
Particulierement difficle est la question de savoir comment traiter des
fuyards trouves par des navires neutres sur mer (sur des iles, des debris,
etc.). Une distinction essentielle semble devoir etre faite selon qu'il y a, ou
non, danger de mort. Dans le premier cas, et quand meme les fuyards ne
seraient ni blesses ni malades, ils se trouvent dans une situation analogue a
de tels, plutot qu'ii celle de simples fuyards sur les territoires et dans les
ports, puisqu'ils sont entre la vie et la mort et exposes a la perte a moins
d'etre secouras. A defaut de stipulation positive, il semble done juste de
les traiter d'apres les dispositions de la Convention de La Haye du 29
juillet 1899 (art. 6, 8 et 10), assurant la protection des naivres transpor-
tants, et des naufrages, blesses et malades, a condition de garanties contre
leur rentree dans la me me guerre comme combattants. Si au contraire les
ftryards recontrcs sur mer sont hors de danger de mort, la question de
savoir si l'humanite exige de donner suite a leurs reclamations de secours,
peut dependre du degre de detresse ou ils se trouvent. S'ils sont
ramasses par un naivre de guerre neutre ou en haute mer, ils sont places
dans la meme situation juridique que des fuyards entres sur un terri-
128 RESCUE OF SHIPWRECKED BELLIGERENTS.
toire neutre, sujets A l'intcrnemcnt. Que si celui-ci £tait impossible A cause
de l'eloignement de l'Etat du naivre,ils peuvent Otre remia A l'Etatconven-
able le plus proche avec des garanties contre leur rentive au service belliger-
ent. Si rest dans des eaux territoriales et par un naivre neutre marchand
qu'ils sont rec/us, ce naivre doit les remettre A l'Etat territorial, A moins
que cela n'implique un service de transport interdit pour le compte d'un
belligerant. et eel Etat agira coninie en vers des fuyardsentirssur son terri-
toire. (Kleen. La Neutralite. Vol. II, p. 32.)
Conclusions. — As these crews enter upon the vessels of
States A, B, and C, those states become officially respon-
sible for their treatment. The practice is such that had
they gone ashore in the harbor by putting themselves
under the jurisdiction of State Y, they would have been
interned. By going on board of the war vessels of States
A, B, and C, they put themselves under the jurisdiction of
those states and should be interned or otherwise disposed
in such manner that they would not again participate in
hostilities during the remainder of the war.
It may be said, therefore, that —
(a) The claim of the United States commander was
not justifiable, as he had not captured the vessels of State
X and could exercise no jurisdiction within the port of
neutral State X or upon the neutral war vessels belonging
to States A, B, and C.
(b) The proper adjustment of the case under considera-
tion would be the internment of the rescued seamen or
other disposition by which they should not again take
part in the Avar.
It may be noted that this case particularly shows the
need for further agreement upon the rules of maritime
During the war between the United States and State
X, a war vessel of the United States meets a war vessel of
State X off the harbor of neutral State Y. When about
to attack the war vessel of State X, a war vessel of State Y,
near point (0), signals that it would be a violation of neu-
trality to engage in battle at that point. The point (0) is
found to be 5^ miles from the nearest land of State Y, as
shown in the accompanying plan (I) below.
(a) What is the limit of territorial jurisdiction?
(b) What should the commander do in regard to the
(a) The limit of territorial jurisdiction in the Situa-
tion under consideration would be generally admitted to
be 3 nautical miles outside the " straight line athwart
the bay as close as possible to the entrance at the first
point at which the entrance to the bay exceeds 10 miles
of 60° latitude/ ' as the Netherlands proclamation states.
(b) The commander of the United States war vessel
should heed the protest of neutral State Y and should
not attack the vessel of State X until it passes outside
of neutral jurisdiction, and must use reasonable care that
no act of hostility takes place which will endanger neu-
130 EXTENSION OF MARITIME JURISDICTION.
NOTES ON SITUATION IX.
Maritime jurisdiction. — The limit of maritime terri-
torial jurisdiction lias been the subject of much difference
of opinion. The rule of Bynkershoek has formed the
basis of the opinion since it was set forth in " De Dominio
Maris " in 1702. He maintained " potest atem terras finiri
ubi finitur armorum vis/' or that the territorial jurisdis-
tion was bounded by the range of arms. In those days
this range seems to have been about a marine league.
Hence the three-mile limit became common. It was ac-
knowledged in many treaties. It was legalized in some
states, as by the Territorial Waters Jurisdiction Act of
Great Britain in 1878, and the convention of 1888 in regard
to the Suez Canal, and Article III, 5, of the Hay-Paunce-
fote treaty of 1901 also adopts the three-mile limit of mar-
itime jurisdiction for the Panama Canal. The marine
league was also adopted in fisheries treaty between the
United States and Great Britain of October 20, 1818,
Three marine miles from the low-water mark may be
considered as in practice the conventional extent of mari-
time jurisdiction. There are, however, many exceptions
claimed and granted.
One of the most common claims, though not generally
admitted, is that the rule enunciated by Bynkershoek
should be followed, viz, that the maritime jurisdiction
should be bounded by the range of arms and should ac-
cordingly be increased as the range of arms increases.
For certain purposes, such as for attack and defense of
the coast, it is maintained that this is in fact the real limit
of effective jurisdiction at the present time.
For revenue purposes, for the protection of special
industries, such as fishing, and for other reasons, various
limits beyond the three-mile line have been claimed and
acknowledged from time to time.
Kent's extreme claim. — Kent makes extreme claims for
the United States. On page 112 of Abdy's edition of his
Commentary on International Law, he says:
All that can reasonably be asserted is that the dominion of the sovereign
of the shore over the contiguous sea extends as far as is requisite for his
Kent's claim. 131
safety and for some lawful end. A more extended dominion must rest
entirely upon force and maritime supremacy. According to the current of
modern authority the general territorial jurisdiction extends into the sea
as far as a cannon shot will reach and no farther, and this is usually calcu-
lated to be a marine league (or three miles, the maxim in which this doctrine
is embodied being "terrse finitur dominium ubi finitur armorum vis"),
and the Congress of the United States have recognized this limitation by
authorizing the district courts to take cognizance of all captures made
within a marine league of the American shores. The Executive authority
of that country, in 1793, considered the whole of Delaware Bay to be within
its territorial jurisdiction, resting its claims upon those authorities which
admit that gulfs, channels, and arms of the sea belong to the people with
whose lands they are encompassed, and it was intimated that the law of
nations would justify the United States in attaching to their coasts an
extent into the sea beyond the reach of cannon shot.
Considering the great extent of the line of the American coasts, their
writers contend that they have a right to claim, for fiscal and defensive
regulations, a liberal extension of maritime jurisdiction; nor would it be
unreasonable, as they say, to assume, for domestic purposes connected
with their safety and welfare, the control of the waters on their coasts,
though included within lines stretching from quite distant headlands, as,
for instance, from Cape Ann to Cape Cod, and from Nantucket to Mon-
tauk Point, and from that point to the capes of the Delaware, and from
the south cape of Florida to the Mississippi. It is certain that their Gov-
ernment would be disposed to view with some uneasiness aDd sensibility,
in the case of war between other maritime powers, the use of the waters of
their coast, far beyond the reach of cannon shot, as cruising ground for
belligerent purposes. In 1793 the Government of the United States
thought they were entitled, in reason, to as broad a margin of protected
navigation as any nation whatever, though at that time they did not posi-
tively insist upon more than the distance of a marine league from the sea-
shores; and in 1806 they thought it would not be unreasonable, consider-
ing the extent of the United States, the shoalness of their coast, and the
natural indication furnished by the well-defined path of the Gulf Stream,
to expect an immunity from belligerent warfare for the space between that
limit and the American shore.
It ought, at least, to be insisted, they urged, that the extent of the neu-
tral immunity should correspond with the claims maintained by Great
Britain around her own territory, and that no belligerent right should be
exercised within "the chambers formed by headlands, or anywhere at sea
within the distance of four leagues, or from a right line from one headland
to another." In the case of the Little Belt, which was cruising many miles
from shore between Cape Henry and Cape Hatteras, the Government of
the United States laid stress on the circumstance that she was "hovering
on our coasts," and it was contended on their part that they had a right to
know the national character of armed ships in such a situation, and that
it was a right immediately connected with their tranquillity and peace.
It was further observed that all nations exercise the right, and none with
132 EXTENSION OF MARITIME JURISDICTION.
more rigor or at a greater distance from the coast, than Great Britain, and
none on more justifiable grounds than the United States. There can be
but little doubt that the more the United States advance in commerce and
naval strength the more will their Government be disposed to feel and
acknowledge the justice and policy of the British claim to supremacy over
the narrow seas adjacent to the British isles, because they will stand in
need of similar accommodation and means of security.
This position assumed by Kent presents the case of
claims for jurisdiction beyond the three-mile limit more
broadly than the Government itself was inclined to pre-
sume to make claims. No such extreme position would
now be taken even in the claims for fishing rights.
Russian provision. — Article 21 of the Russian Prize Law
provides: "The right of making prizes is recognized only
in the open seas. As for the open sea, it consists of
waters which are not under fire of neutral batteries, or
three sea miles from the neutral shores." (U. S. For.
Rel., 1886, p. 957.)
French position in 186/f.. — In 1864, at the time of the
prospective battle between the Kearsarge and the Ala-
bama, the following dispatches were sent, showing some-
thing of the opinion of the time:
Mr. Dayton to Mr. Seward.
Paris, June 17, 186 Jf.
Sir: You will, doubtless, have received, before this, notice of the arrival
of the Alabama in the port of Cherbourg and my protest to this Govern-
ment against the extension of any accommodations to this vessel. M.
Drouyn de l'Huys yesterday informed me that they had made up their
minds to this course, and he gave me a copy of the written directions given
by the minister of marine to the vice-admiral, maritime prefect at Cher-
bourg, a translation of which accompanies this dispatch. But he, at the
same time, informed me that the United States ship of war, the Kearsarge,
had appeared off the port of Cherbourg and there was danger of an imme-
diate fight between those vessels; that the Alabama professes its entire
readiness to meet the Kearsarge, and he believed that each would attack
the other as soon as they were three miles off the coast ; that a sea fight would
thus be got up in the face of France, and at a distance from their coast
within reach of the guns used on shipboard in these days; that the dis-
tance to which the neutral right of an adjoining government extended
itself from the coast was unsettled, and that the reason of the old rules,
which assumed that three miles was the outermost reach of a cannon shot, no
longer existed, and that, in a word, a fight on or about such a distance
from their coast would be offensive to the dignity of France and they would'noJ
FRENCH POSITION, 1864. 133
permit it. I told him that no other rule than the three-mile rule was known
or recognized as a principle of international law, but if a fight were to take
place, and we would lose nothing and risk nothing by its being farther off,
I had, of course, no objection. I had no wish to wound the susceptibili-
ties of France by getting up a fight within a distance which made the can-
non shot liable to fall on her coast. I asked him if he would put his views
and wishes on this question in writing, and he promised me to do so. I
wrote to Captain Winslow this morning, and herewith inclose you a copy
of my letter. I have carefully avoided in this communication anything
which would tend to make the Kearsarge risk anything by yielding what
seemed to me an admitted right.
To deliver this letter, and understand some matters in respect to the
alleged sale of the clipper ships at Bordeaux, I have sent my son to Cher-
I am, sir, your obedient servant, Wm. L. Dayton.
Hon. William H. Seward, etc.
Mr. Dayton to Captain Winslow.
Sir: This will be delivered to you by my son and assistant secretary of
legation. I have had a conversation this afternoon with M. Drouyn de
l'Huys, minister of foreign affairs. He says they have given the Alabama
notice that she must leave Cherbourg, but in the meantime you have come
in and are watching the Alabama, and that this vessel is anxious to meet you,
and he supposes you will attack her as soon as she gets three miles off the
coast; that this will produce a fight which will be at best a fight in waters
which may or may not be French waters, as accident may determine; that
it would be offensive to the dignity of France to have a fight under such
circumstances and France will not permit it; that the Alabama shall not
attack you, nor you her, within the three miles or on or about that distance
off. Under such circumstances I do not suppose that they would have,
on principles of international law, the least right to interfere with you if
three miles off the coast, but if you lose nothing by fighting six or seven
miles off the coast instead of three, you had best do so. You know better
than I (who have little or no knowledge of the strength of the two vessels)
whether the pretense of the Alabama of a readiness to meet you is more
than a pretense, and I do not wish you to sacrifice any advantage if you
have it. I suggest only that you avoid all unnecessary trouble with
France, but if the Alabama can be taken without violating any rules of
international law, and may be lost if such a principle is yielded, you know
what the Government would expect of you. You will, of course, yield no
real advantage to which you are entitled, while you are careful to so act
as to make uselessly no unnecessary complications with the Government.
I ought to add that Mr. Seward's dispatch, dated May 20, 1864, was in the
following words: "The Niagara will proceed with as much dispatch as
possible to cruise in European waters, and that the Dictator, so soon as
she shall be ready for sea (which is expected to be quite soon), will follow
134 EXTENSION OF MARITIME JURISDICTION.
her, unless in the meantime advices from yourself and Mr. Adams shall
be deemed to furnish reasons for a change of purpose in that respect."
That you may understand exactly the condition of things in regard to
the Alabama, I send you herewith a copy of a communication from the
minister of marine of the naval prefect at Cherbourg, furnished me by
the minister of foreign affairs.
Respectfully, your obedient servant,
Wm. L. Dayton.
United States Ship Kearsarge.
(Diplomatic Correspondence, 1864, Pt. 3, p. 104.)
A subsequent report affirms that "the Alabama sunk
five miles from shore." Captain Semmes says that the
Kearsarge was about nine miles off shore as he left the
harbor, and that the Kearsarge was within about 400 yards
when the Alabama was on the point of sinking. This
testimony seems to show that the protest of France was
heeded, and that the fighting took place at a safe distance
from shore. The testimony of eyewitnesses from the
shore is also to the same effect. A French man-of-war
accompanied the Alabama "to the distance of at least
three miles to see, doubtless, that the three-mile rule was
Questions raised by United States. — Later in 1864 a
discussion of the question of belligerent action in the
neighborhood of neutral territory was carried on between
the United States and Great Britain, but no agreement
was reached among the maritime powers.
Mr. Seward to Mr. Burnley.
Department of State,
Washington, September 16, 1864-
Sir: On the 30th day of May last Commander Trenchard, of the United
States steamer Rhode Island, while chasing the insurgent vessel the Mar-
garet and Jessie in the open sea off the coast of Eluthera, in the Bahamas,,
fired at her at least one cannon shot, which is alleged to have reached the
neutral coast. Her Britannic Majesty's Government thereupon com-
plained to this Government that the Rhode Island had come and was
within the distance of a marine league, or three miles from the shore, when
the cannon ball was fired. On investigating the complaint it did not
satisfactorily appear that a cannon ball was fired by the chaser within the
distance of three miles from the land, but, on the other hand, it was estab-
lished that a Parrott gun, which was discharged, had a range of five miles,
and that a ball from it might have reached the neutral shore, although
fired outside of the line of maritime jurisdiction.
OTHER DISCUSSION, 18(>4. 135
Upon this state of facts Her Majesty's Government have, through you,
expressed a hope that the United States will concur with the British Gov-
ernment in opinion that vessels should not fire toward a neutral shore
at a less distance than that which would insure shot not falling into neutral
waters, or in a neutral territory. To this suggestion I at once replied,
by order of the President, that the subject would be brought to the atten-
tion of other maritime powers, in order that if any change of the existing
construction of the maritime law should be made it should first receive
the assent of all the great maritime states.
There is reason to apprehend that the subject, although now abstractly
presented, may soon become a practical question. Spain claims a maritime
jurisdiction of six miles around the island of Cuba. In pressing this claim
upon the consideration of the United States Spain has used the argument
that the modern improvement in gunnery renders the ancient limit of a
marine league inadequate to the security of neutral states.
When it is understood at Paris that an engagement was likely to come
off before Cherbourg between the United States ship of war Kearsarge
and the pirate Alabama, the French Government remonstrated with both
parties against firing within the actual reach of the shore b\ T cannon balls
fired from their vessels, on the ground that the effect of a collision near
the coast would be painful to France.
For these reasons I think that the subject may now be profitably dis-
missed; but there are some preliminary considerations which it is deemed
mportant to submit to Her Majesty's Government: First, that the United
states, being a belligerent now when the other maritime states are at
peace, are entitled to all the advantages of the existing construction of
maritime law, and can not, without serious inconvenience, forego them;
secondly, that the United States, adhering in war no less than when they
were in the enjoyment of peace to their traditional liberality toward neu-
tral rights, are not unwilling to come to an understanding upon the novel
question which has thus been raised "in consequence of the improvement
in gunnery;" but, thirdly, it is manifestly proper and important that
any such new construction of the maritime law as Great Britain suggests
should be reduced to the form of a precise proposition, and then that it
should receive in some manner, by treaty or otherwise, reciprocal and
obligatory acknowledgments from the principal maritime powers.
Upon a careful examination of the note you have addressed to me the
suggestions of Her Majesty's Government seem to me to be expressed in
too general terms to be made the basis of a discussion. Suppose, by way
of illustration, that the utmost range of cannon now is five miles; are Her
Majesty's Government understood to propose that the marine boundary
of neutral jurisdiction, which is now three miles from the coast, should be
extended two miles beyond the present limit? Again, if cannon shot are to
be fired so as to fall not only not upon neutral land, but also not upon neu-
tral waters, then supposing the range of the cannon shot to be five miles, are
Her Majesty's Government to be understood as proposing that cannon shot
shall not be fired within a distance of eight miles from the neutral territory?
Finally, shall measure-distances be excluded altogether from the statement,
136 EXTENSION OP MARITIME JURISDICTION.
and the proposition to be agreed upon be left to extend with the increased
range of gunnery; or shall there be a pronounced limit of jurisdiction,
whether five miles, eight miles, or any other measured limit?
I have to request that you will submit these suggestions to your Govern-
ment, to the end that they may define, with necessary precision, the
amendment of maritime law which they think important, and upon which
they are willing to agree with the other maritime powers.
I have the honor to be, with high consideration, sir, your most obedient
William H. Seward.
J. Hume Burnley, Esq., etc.. etc.
(Diplomatic Correspondence of 1864, p. 704.)
Questions raised by Professor Moore. — In a communi-
cation from Professor Moore, considered by the Institute
of International Law in 1894, he says:
The second clause of the article proposes to forbid belligerent acts
within the range of cannon shot from the coast. Should you in this matter
measure from the limits of territorial waters, or from the shore at low water
mark? If the measurement should be made from the latter, it might not
be sufficient for the purposes of the rule. As I understand the subject, a
nation is bound to prevent unneutral acts within its jurisdiction, which
covers territorial waters. If, therefore, belligerent acts which operate
within the jurisdiction, though the parties committing them may be
outside, are to be considered as a violation of the state's neutrality, should
not the belligerent acts be required to take place at the designated distance
from jurisdictional limits'? (Annuaire d PInstitut de Droit International,
XIII, p. 149.)
Position of Secretary Bayard. — In discussing the
British fisheries question Mr. Bayard, then Secretary
of State, writes to Mr. Manning, Secretary of the Treas-
ury, on May 28, 1886, expressing the determination to
maintain the three-mile limit as a restriction. He, how-
We do not. in asserting this claim, deny the free right of vessels of other
nations to pass on peaceful errands through this zone, provided they do
not, by loitering, produce uneasiness on the shore or raise a suspicion of
smuggling. Nor do we hereby waive the right of the sovereign of the shore
to require that armed vessels, whose projectiles, if used for practice or
warfare, might strike the shore, should move beyond cannon range of the
shore when engaged in artillery practice or in battle, as was insisted on
by the French Government at the time of the fight between the Kearsarge
and the Alabama, in 1864, off the harbor of Cherbourg. (Wharton, Inter-
nal Law Digest, vol. 1, p. 108.)
This position of Secretary Bayard, taken at a time
when the matter of limitation of the field of belligerent
LATER OPINIONS. 137
activity was not under consideration, upholds the position
taken by France more than twenty years earlier. It
may further be maintained that a neutral state may as
a police measure require that the action of belligerents
shall not endanger her safety.
Other opinions. — Mr. Wharton summarizes some of [the
discussion between the United States and Great Britain
and the decisions under their treaties as follows:
A construction of the terms "coasts, bays, creeks, or harbors" in the
treaty of 1818 was given by the mixed commission under the convention
of 1853 in the case of the United States fishing schooner Washington, which
was seized while fishing in the Bay of Fundy,ten miles from shore, taken to
Yarmouth, Nova Scotia, and adjudged forfeited, on the charge of violating
the treaty of 1818 by fishing in waters in which the United States had, by
that convention, renounced the right of its citizens to take fish. A claim
of the owners of the Washington for compensation came before the commis-
sion above mentioned, and, the commissioners differing, the case was re-
ferred to Mr. Joshua Bates, the umpire, who, referring to the theory that
"bays and coasts" were to be defined by "an imaginary fine drawn along
the coast from headland to headland, and that the jurisdiction of Her
Majesty extends three marine miles outside of this line, thus closing all the
bays on the coast or shore and that great body of water called the Bay of
Fundy," pronounced it a "new doctrine," and, repudiating the decision of
the provincial court based thereon, awarded the owners of the vessel com-
pensation for illegal condemnation.
The umpire also decided that as the Bay of Fundy is from 65 to 75 miles
wide and from 130 to 140 miles long, with several "bays" on its coasts, and
has one of its headlands in the United States, and must be traversed for a
long distance by vessels bound to Passamaquoddy Bay, and contains one
United States island, Little Menan, on the fine between headlands, the Bay
of Fundy could not be considered as an exclusively British bay. (See
President's message communicating proceedings of commission to Senate;
also Dana's Wheaton,274, note 142.) The "headland" theory was again
rejected by the umpire in the case of the schooner Argus, which was seized
while fishing on Saint Ann's Bank, 28 miles from Cape Smoke, the near-
est land, taken to Sidney, and sold, for violation of the treaty of 1818 by
fishing within headlands. The owners were awarded full compensation.
(Wharton, International Law Digest, vol. 3, p. 59.)
Davis states that:
The question of jurisdiction over many such partly included bodies of
water, sometimes called closed seas, has already been decided. The Ches-
apeake and Delaware bays are recognized as parts of the territory of the
United States ; Hudson Bay and the Irish Sea as British territory ; the Cas-
pian Sea belongs to Russia; Lake Michigan to the United States. The
Black Sea, before Russia obtained a foothold upon it, formed part of the
138 EXTENSION OF MARITIME JURISDICTION.
territories of the Ottoman Porte; it is now subject to the joint jurisdiction
of Turkey and Russia. The Baltic is acknowledged to have the character
of a closed sea (and to be subject to the control of the powers surrounding
it) certainly to the extent of guaranteeing it against acts of belligerency
when the powers within whose territory it lies are at peace. (Davis, Ele-
ments of International Law, p. 58.)
Headland doctrine. — By a treaty between Great Britain
and France of August 2, 1839, the limit of jurisdiction
was for bays to be measured from a line drawn directly
athwart the bay at a point where the opening of the bay
did not exceed ten miles. Belgium had earlier adopted
this rule by a law of June 7, 1832. In a " Notice to the
British fishermen fishing off the coasts of North Ger-
many," issued in 1868, the following provision occurred:
1. The exclusive fishery limits of North Germany are designated by the
North German government as follows : that tract of the sea which extends
to a distance of 3 sea miles from the extremest limit which the ebb leaves
dry of the German North Sea coast of the German Islands or Flats lying
before it, as well as those bays and incurvations of the coast which are 10
sea miles or less in breadth, reckoned from the extremest points of the land
and the Flats, must be considered as under the territorial sovereignty of
the North German Confederation. (Perels, Manuel de Droit Maritime
International, 1884, p. 43.)
Institute of International Law, 189 If.. — The Institute of
International Law in 1894 adopted twelve miles as the
width of the mouth of inclosed bays and the line of marine
jurisdiction would run parallel at a distance of three
miles from the twelve-mile line.
Art. 3. Pour les baies, la mer territoriale, suit les sinuosites de la cote,
sauf qu'elle est mesuree a partir d'une ligne droite tiree en travers de la
baie dans la partie, la plus raprochee de l'ouverture ver la mer, ou Pecart
entre les deux cotes de la baie, est de douze milles marins de laguer, a
moins qut' un usage, continu et stculaire n'ait consacre une largeur plus
grande. (Annuaire XIII, p. 329.)
Other opinions. — Kivier considers the limits of effective
control and inclines to regard the ten-mile line as a rea-
sonable one for the mouths of rivers and bays.
Conformement a ce qui vient d'etre dit, les portions de mer, ou les mers
qu'en raison de leur configuration on appelle golfes, ou baies, sont territo-
riales lorsqu'elles sont environm'es des terres d'un seul Etat et que leur
entree est suffisamment etroite pour etre commandee par les canons de la
HEADLAND DOCTRINE. 139
cote. Mais du moment qu'il y a plusieurs Etats cotiers, le golfe est mer
libre, quelle que soit la largeur de son entree. Le golfe, meme entoure
par un seul Etat, est mer libre, si l'entree est trop large pour etre dominee
de la cote. On admet assez generalement qu'il en est ainsi lorsque l'ecarte-
ment des deux rives est de plus de dix milles marins.
A convention at The Hague of May 6, 1882 ; in its sec-
ond article, made the following provision:
Pour les baies, le rayon de trois milles sera mesure a partir d'une ligne
droite, tiree en travers de la baie, dans la partie la plus rapprochee de
l'entree, au premier point ou l'ouverture n'excedera pas dix milles. (Rivier,
Principes de Droit des Gens, 1896, 1, pp. 154, 155.)
The general drift of opinion has been toward the ad-
mission of a claim to jurisdiction over bays when the
mouth is not more than ten miles in width and also to
three miles beyond the line drawn from headland to
headland. Hall says:
It seems to be generally thought that straits are subject to the same rule
as the open sea; so that when they are more than six miles wide the space in
the center which lies outside the limit of a marine league is free, and that
when they are less than six miles wide they are wholly within the territory of
the state or states to w^iich their shores belong. This doctrine, however,
is scarcely consistent with the view, which is also generally taken, that
gulfs, of a greater or less size in the opinion of different writers, when run-
ning into the territory of a single state can be included within its territorial
waters. Perhaps, also, it is not in harmony with the actual practice with
respect to waters of the latter kind. France, perhaps, claims " baies
f ermees ' ' and other inlets or recesses the entrance of which is not more
than ten miles wide. Germany regards as territorial the waters within
bays or incurvations of the coast which are less than ten sea miles in
breadth, reckoned from the extremest points of the land, and doubtless
includes all the water within three miles outward from the line joining
such headlands. England would, no doubt, not attempt any longer
to/ assert a right of property over the Queen's Chambers, which include
the waters within lines drawn from headland to headland, as from Orford-
ness to the Foreland and from Beachy Head to Dunnose Point ; but some
writers seem to admit that they belong to her, and a recent decision of the
Privy Council has affirmed her jurisdiction over the Bay of Conception in
Newfoundland, which penetrates forty miles into the land and is fifteen miles
in mean breadth. Authors also so little favorable to maritime property as
Ortolan and De Cussy class the Zuyder Zee amongst appropriated waters.
The United States probably regards as territorial the Chesapeake and
Delaware bays, and other inlets of the same kind. Many claims to gulfs
and bays still find their place in the books, but there is nothing to show
what proportion of these are more than nominally alive. (Hall, Inter-
national Law, 5th ed., p. 155.)
140 EXTENSION OF MARITIME JURISDICTION
The Institute of International Law in 1894 adopted the
rule that in case of war a coast state could, by declaration,
extend the zone of maritime neutrality.
Article 4. En cas de guerre, PEtat riverain neutre a le droit de fixer,
par la declaration de neutrality ou par notification speciale, sa zone neutre
au dela de six milles, jusqu* a portee du cannon des cotes. (Annuaire XIII,
In view of the increasing range of guns, the necessity of
the protection of harbors, the liability of injury to com-
merce and to shore interests, it is not unreasonable to
claim a wider jurisdiction, where bays are somewhat over
six miles wide, than would be claimed under the strict
three-mile limit. Precedents seem to favor such claims in
time of peace. There is even more justification for the
claims in time of war.
Bonfils says, "II est generalment admis que les golfes
appartiennent a l'Etat dont les terres environnent, lorsque
leur largeur ne depasse pas dix milles marins. (Droit
International Public, 516.)
Xetherlands 'proclamation, 1904- — A recent proclama-
tion of neutrality in Russo-Japanese war of 1904 met no
Article 8. Under the territory of the kingdom is also included the sea-
coast to within a distance of three nautical miles of 60° latitude at low
water mark. In regard to bays, that distance of three nautical miles shall be
measured from a straight line athwart the bay as close as possible to the
entrance at the first point at which the entrance to the bay exceeds ten miles
of 60° latitude. (Netherlands Proclamation of Neutrality, Russo-Japanese
As the United States has claimed jurisdiction over the
mouths of bays and gulfs much beyond that claimed in
the Netherlands proclamation, it is probable that it
would admit the claim of State Y as presented in this
Conclusions. — (a) The limit of territorial jurisdiction
in the situation under consideration would be generally
admitted to be three nautical miles outside the "straight
line athwart the bay as close as possible to the entrance at
the first point, at which the entrance to the bay exceeds
ten miles of 60° latitude, ' ' as the Netherlands proclama-
EXTENSION SUPPORTED. 141
(b) The commander of the United States war vessel
should heed the protest of neutral State Y, and should
not attack the vessel of State X until it passes outside of
neutral jurisdiction, and must further use reasonable care
that no act of hostility takes place which will endanger